Defending Liberty
Pursuing Justice

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Arizona Death Penalty Assessment Report
An Analysis of Arizona’s Death Penalty Laws, Procedures, and Practices

“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President

July 2006
AMERICAN BAR ASSOCIATION

Defending Liberty
Pursuing Justice

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Arizona Death Penalty Assessment Report
An Analysis of Arizona’s Death Penalty Laws, Procedures, and Practices

“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President

July 2006
AMERICAN BAR ASSOCIATION

The materials contained herein represent the assessment solely of the ABA Death Penalty
Moratorium Implementation Project and the Arizona Death Penalty Assessment Team
and have not been approved by the House of Delegates or the Board of Governors of the
American Bar Association and accordingly, should not be construed as representing the
policy of the American Bar Association.
These materials and any forms or agreements herein are intended for educational and
informational purposes only.
This document has been produced with the financial assistance of the European Union.
The contents of this report are the sole responsibility of the American Bar Association
and can under no circumstances be regarded as reflecting the position of the European
Union.
Significant portions of the research were performed on Westlaw courtesy of West Group.
Copyright 2006, American Bar Association

ACKNOWLEDGEMENTS
The American Bar Association Death Penalty Moratorium Implementation Project (the
Project) is pleased to present this publication, Evaluating Fairness and Accuracy in State
Death Penalty Systems: The Arizona Death Penalty Assessment Report.
The Project expresses its great appreciation to all those who helped develop, draft, and
produce the Arizona Assessment Report. The efforts of the Project and the Arizona
Death Penalty Assessment Team were aided by many lawyers, academics, judges, and
others who presented ideas, shared information, and assisted in the examination of
Arizona’s capital punishment system.
Particular thanks must be given to Deborah Fleischaker and Banafsheh Amirzadeh, the
Project staff who spent countless hours researching, writing, editing, and compiling this
report. In addition, we would like to thank the American Bar Association Section of
Individual Rights and Responsibilities for their substantive, administrative, and financial
contributions. In particular, we would like to thank Ellen Whiteman and Meghan Shapiro
for their assistance in fact-checking and proof-reading multiple sections of the report.
We would like to recognize the research contributions made by Savannah Luisa Castro,
Michelle Grassel, Tanya Imming, Nora Nunez, April Olson, Melissa Schaffer, Faisal
Ullah, and Katherine Winder, all of whom were law students at the Sandra Day
O’Connor College of Law at Arizona State University.
Additionally, the efforts of Martell Swain, Connie Shivers, Linda Showlund, Joe Seely,
and Nelson Koga at the law firm of Holland & Knight in fact and cite-checking portions
of the report were immensely helpful.
Lastly, in this publication, the Project and the Assessment Team have attempted to note
as accurately as possible information relevant to the Arizona death penalty. The Project
would appreciate notification of any errors or omissions in this report so that they may be
corrected in any future reprints.

TABLE OF CONTENTS
EXECUTIVE SUMMARY ........................................................................................................................... i
INTRODUCTION ........................................................................................................................................ 1
CHAPTER ONE: AN OVERVIEW OF ARIZONA’S DEATH PENALTY SYSTEM ......................... 7
I.
II.
III.

DEMOGRAPHICS OF ARIZONA’S DEATH ROW ............................................................................... 7
THE STATUTORY EVOLUTION OF ARIZONA’S DEATH PENALTY SCHEME ................................... 13
PROGRESSION OF AN ARIZONA DEATH PENALTY CASE ............................................................. 24

CHAPTER TWO: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE............................................................................................................................. 45
INTRODUCTION TO THE ISSUE ................................................................................................................... 45
I.
FACTUAL DISCUSSION................................................................................................................ 47
II.
ANALYSIS .................................................................................................................................. 54
CHAPTER THREE: LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS... 61
INTRODUCTION TO THE ISSUE ................................................................................................................... 61
I.
FACTUAL DISCUSSION................................................................................................................ 63
II.
ANALYSIS .................................................................................................................................. 71
CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES .............. 83
INTRODUCTION TO THE ISSUE ................................................................................................................... 83
I.
FACTUAL DISCUSSION................................................................................................................ 84
II.
ANALYSIS .................................................................................................................................. 92
CHAPTER FIVE: PROSECUTORIAL PROFESSIONALISM............................................................ 99
INTRODUCTION TO THE ISSUE ................................................................................................................... 99
I.
FACTUAL DISCUSSION.............................................................................................................. 100
II.
ANALYSIS ................................................................................................................................ 114
CHAPTER SIX: DEFENSE SERVICES ............................................................................................... 123
INTRODUCTION TO THE ISSUE ................................................................................................................. 123
I.
FACTUAL DISCUSSION.............................................................................................................. 124
II.
ANALYSIS ................................................................................................................................ 138
CHAPTER SEVEN: DIRECT APPEAL PROCESS ............................................................................ 161
INTRODUCTION TO THE ISSUE ................................................................................................................. 161
I.
FACTUAL DISCUSSION.............................................................................................................. 162
II.
ANALYSIS ................................................................................................................................ 167
CHAPTER EIGHT: STATE POST-CONVICTION PROCEEDINGS .............................................. 169
INTRODUCTION TO THE ISSUE ................................................................................................................. 169
I.
FACTUAL DISCUSSION.............................................................................................................. 171
II.
ANALYSIS ................................................................................................................................ 179
CHAPTER NINE: CLEMENCY ............................................................................................................ 189
INTRODUCTION TO THE ISSUE ................................................................................................................. 189
I.
FACTUAL DISCUSSION.............................................................................................................. 191
II.
ANALYSIS ................................................................................................................................ 200
CHAPTER TEN: CAPITAL JURY INSTRUCTIONS ........................................................................ 209
INTRODUCTION TO THE ISSUE ................................................................................................................. 209
I.
FACTUAL DISCUSSION.............................................................................................................. 210
II.
ANALYSIS ................................................................................................................................ 246
CHAPTER ELEVEN: JUDICIAL INDEPENDENCE......................................................................... 253

INTRODUCTION TO THE ISSUE ................................................................................................................. 253
I.
FACTUAL DISCUSSION.............................................................................................................. 254
II.
ANALYSIS ................................................................................................................................ 267
CHAPTER TWELVE: RACIAL AND ETHNIC MINORITIES ........................................................ 277
INTRODUCTION TO THE ISSUE ................................................................................................................. 277
I.
FACTUAL DISCUSSION.............................................................................................................. 278
II.
ANALYSIS ................................................................................................................................ 283
CHAPTER THIRTEEN: MENTAL RETARDATION AND MENTAL ILLNESS .......................... 297
INTRODUCTION TO THE ISSUE ................................................................................................................. 297
I.
FACTUAL DISCUSSION.............................................................................................................. 299
II.
ANALYSIS ................................................................................................................................ 310

EXECUTIVE SUMMARY
INTRODUCTION
Fairness and accuracy together form the foundation of the American criminal justice
system. As our capital punishment system now stands, however, we fall short in
protecting these bedrock principles in all cases. Our system cannot claim to provide due
process or protect the innocent unless it provides a fair and accurate system for every
person who faces the death penalty.
Over the course of the past thirty years, the American Bar Association (ABA) has
become increasingly concerned that there is a crisis in our country’s death penalty system
and that capital jurisdictions too often provide neither fairness nor accuracy. In response
to this concern, on February 3, 1997, the ABA called for a nationwide moratorium on
executions until serious flaws in the system are identified and eliminated. The ABA
urges capital jurisdictions to (1) ensure that death penalty cases are administered fairly
and impartially, in accordance with due process, and (2) minimize the risk that innocent
persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and
Responsibilities, created the Death Penalty Moratorium Implementation Project (the
Project). The Project collects and monitors data on domestic and international death
penalty developments; conducts analyses of governmental and judicial responses to death
penalty administration issues; publishes periodic reports; encourages lawyers and bar
associations to press for moratoriums and reforms in their jurisdictions; convenes
conferences to discuss issues relevant to the death penalty; and encourages state
government leaders to establish moratoriums, undertake detailed examinations of capital
punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project decided in February 2003 to
examine a number of U.S. jurisdictions’ death penalty systems and preliminarily
determine the extent to which they achieve fairness and provide due process. In addition
to the Arizona assessment, the Project has released state assessments of Alabama and
Georgia and is conducting state assessments and releasing reports in, at a minimum,
Florida, Indiana, Ohio, Pennsylvania, Tennessee, and Virginia. The assessments are not
designed to replace the comprehensive state-funded studies necessary in capital
jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies.
These assessments examine the above-mentioned jurisdictions’ death penalty systems,
using as a benchmark the protocols set out in the ABA Section of Individual Rights and
Responsibilities’ publication, Death without Justice: A Guide for Examining the
Administration of the Death Penalty in the United States (the Protocols). While the
Protocols are not intended to cover exhaustively all aspects of the death penalty, they do
cover seven key aspects of death penalty administration, including defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus,
clemency proceedings, jury instructions, an independent judiciary, the treatment of racial
i

and ethnic minorities, and mental retardation and mental illness. Additionally, the
Project includes for review five new areas associated with the administration of the death
penalty, including the preservation and testing of DNA evidence, identification and
interrogation procedures, crime laboratories and medical examiners, prosecutors, and the
direct appeal process.
Each state’s assessment has been or is being conducted by a state-based assessment team,
which is comprised of or has access to current or former judges, state legislators, current
or former prosecutors and defense attorneys, active state bar association leaders, law
school professors, and anyone else whom the Project felt was necessary. Team members
are not required to support or oppose the death penalty or a moratorium on executions.
The state assessment teams are responsible for collecting and analyzing various laws,
rules, procedures, standards, and guidelines relating to the administration of the death
penalty. In an effort to guide the teams’ research, the Project created an Assessment
Guide that detailed the data to be collected. The Assessment Guide includes sections on
the following: (1) death-row demographics, DNA testing, and the location, testing, and
preservation of biological evidence; (2) evolution of the state death penalty statute; (3)
law enforcement tools and techniques; (4) crime laboratories and medical examiners; (5)
prosecutors; (6) defense services during trial, appeal, and state post-conviction
proceedings; (7) direct appeal and the unitary appeal process; (8) state post-conviction
relief proceedings; (9) clemency; (10) jury instructions; (11) judicial independence; (12)
the treatment of racial and ethnic minorities; and (13) mental retardation and mental
illness.
The assessment findings provide information about how state death penalty systems are
functioning in design and practice and are intended to serve as the bases from which
states can launch comprehensive self-examinations. Because capital punishment is the
law of the land in each of the assessment states and because the ABA takes no position
on the death penalty per se, the assessment teams focused exclusively on capital
punishment laws and processes and did not consider whether states, as a matter of
morality, philosophy, or penological theory, should have the death penalty. Moreover,
the Project and the Assessment Team have attempted to note as accurately as possible
information relevant to the death penalty in Arizona. The Project would appreciate
notification of any errors or omissions in this report so that they may be corrected in
future reprints.
Despite the diversity of backgrounds and perspectives among the members of the Arizona
Death Penalty Assessment Team, and although some members disagree with particular
recommendations contained in the assessment report, the team believes that the body of
recommendations as a whole would, if implemented, significantly improve Arizona’s
capital punishment system.

ii

I. HIGHLIGHTS OF THE REPORT
A. Overview
To assess fairness and accuracy in Arizona’s death penalty system, the Arizona Death
Penalty Assessment Team researched twelve issues: (1) collection, preservation, and
testing of DNA and other types of evidence; (2) law enforcement identifications and
interrogations; (3) crime laboratories and medical examiner offices; (4) prosecutorial
professionalism; (5) defense services; (6) the direct appeal process; (7) state postconviction proceedings; (8) clemency; (9) jury instructions; (10) judicial independence;
(11) the treatment of racial and ethnic minorities; and (12) mental retardation and mental
illness. The Arizona Death Penalty Assessment Report summarizes the research on each
issue and analyzes the State’s level of compliance with the relevant ABA
Recommendations.
B. Areas Needing Attention
The assessment findings indicate a need to reform a number of areas within Arizona’s
death penalty system to ensure that it provides a fair and accurate system for every person
who faces the death penalty. While the following issues are some of the most serious
problems facing Arizona’s death penalty system, the danger we face, at its core, is
cumulative. The capital system has many interconnected moving parts, any one (or
more) of which is capable of failing in any given case. Furthermore, many of the issues
and recommendations discussed in this assessment are applicable to the criminal justice
system as a whole and are not limited to the capital system. With that in mind, the
Arizona Death Penalty Assessment Team finds the following problem areas most in need
of reform:
•

•

•

Decentralized Defense Services – Although the State of Arizona provides
indigent defendants with counsel at trial, on direct appeal, and in state postconviction proceedings, Arizona’s indigent defense services is a mixed and
uneven system that lacks level oversight and standards and does not provide
uniform, quality representation to indigent defendants in all capital proceedings.
With the exception of the newly-established state capital post-conviction public
defender office, the State has failed to adopt a statewide public defender office,
mandate the establishment of public defender offices providing coverage within
each county, adequately fund indigent defense services in each county, or
implement close oversight of indigent legal services at the county level.
Insufficiently Compensated Appointed Counsel – The compensation paid to
appointed attorneys who represent capital defendants is insufficient for counsel to
meet their obligations under the ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases (Guidelines), despite the
fact that the Arizona Rules of Criminal Procedure require defense counsel to be
familiar with the Guidelines and that the Arizona Supreme Court may mandate
compliance with portions of the Guidelines.
Lack of a Mechanism to Ensure Proportionality – While proportionality review
is the single best method of protecting against arbitrariness in capital sentencing,
the Arizona Supreme Court is not required to undertake a proportionality review
iii

•

in capital cases. Since 1992, the Arizona Supreme Court has rejected any
arguments that the absence of proportionality review denies capital defendants
equal protection and due process of law, or that it is tantamount to cruel and
unusual punishment.
Lack of Effective Limitations on the “Especially Cruel, Heinous, or Depraved”
Aggravating Circumstance – In 2002, the Arizona Capital Case Commission
expressed concerns regarding the ambiguity of the (F)(6) statutory aggravating
circumstance (a murder committed in an “especially cruel, heinous or depraved
manner”), but no changes have yet been made. Currently, the courts, in
determining the constitutionality of jury instructions used to explain this
aggravating circumstance, require the instructions to contain “essential narrowing
factors” and provide “specificity and direction” to the jury, but do not mandate
that a uniform and specific definition be used. Given the inherent vagueness of
this aggravating circumstance, it is of utmost importance that the State of Arizona
adopt a uniform and specific definition of this aggravating circumstance when
instructing jurors during the aggravation phase of a capital trial. We note that
while the State Bar of Arizona Criminal Jury Instruction Committee has discussed
a proposed jury instruction defining this factor, it has not yet been submitted to
the State Bar Board of Governors for approval.

C. Arizona Death Penalty Assessment Team Recommendations
In addition to endorsing the recommendations found in each section of this Report, the
Arizona Death Penalty Assessment Team makes the following recommendations:
(1)

(2)

(3)

The State of Arizona should create an adequately funded statewide public
defender office for capital cases. As with the Arizona Capital Case
Commission, the Arizona Death Penalty Assessment Team is most
concerned with the availability and quality of trial counsel.
In order to protect against arbitrariness in capital sentencing, the State of
Arizona should ensure proportionality in capital cases.
Because
proportionality is better achieved at the front end rather than the back end,
a capital case review committee housed in the Arizona Prosecuting
Attorneys’ Advisory Council should exercise final discretion as to whether
the death penalty may be sought. The County Attorney may choose not to
seek death, but if s/he desires that capital charges be filed, a capital case
review committee must make the final decision as to the appropriateness
of capital charges. Alternatively, the Arizona Supreme Court should
conduct a comparative proportionality review during the direct appeal
stage of capital cases in which it compares the death sentence under
review with sentences imposed on similarly situated defendants.
Pursuant to the Arizona Capital Case Commission recommendation about
the importance of continued data collection, the State of Arizona should
establish and fund a clearinghouse to collect data on first-degree murder
cases. At a minimum, this clearinghouse should collect data on each
county’s provisions of defense services in capital cases. Relevant
information on all death-eligible cases should be made available to the
Arizona Supreme Court for use in any proportionality review.
iv

(4)

(5)

(6)

(7)

To encourage transparency and the even application of the death penalty,
the State of Arizona should require that all prosecuting agencies involved
in capital case prosecutions have written policies for identifying cases in
which to seek the death penalty. As recommended by the Arizona Capital
Case Commission, these policies should require the solicitation or
acceptance of defense input before deciding to seek the death penalty.
The State of Arizona should provide funding for the completion and
public release of a study of the administration of its death penalty system
to determine the existence or non-existence of unacceptable disparities,
socio-economic, racial, geographic, or otherwise.
The State of Arizona should conduct a study of the Maricopa County’s
Public Defender’s Office, Legal Defender’s Office, Legal Advocate’s
Office, and Office of Contract Counsel to determine if any discrepancies
in average expenditures on capital cases are problematic and signal
differences in the quality of representation.
Crime labs and forensic investigations should be adequately funded so that
biological evidence may be tested quickly and accurate determinations as
to likely guilt or innocence may be made as early in the investigation
process as possible.

Despite the best efforts of a multitude of principled and thoughtful actors in the Arizona
criminal justice system, our research establishes that at this point in time, the State of
Arizona cannot ensure that fairness and accuracy are the hallmark of every case in which
the death penalty is sought or imposed. Because of that, the members of the Arizona
Death Penalty Assessment Team, strongly recommend that the State address the issues
identified throughout this Report, and in particular the Executive Summary.
II. SUMMARY OF THE REPORT
Chapter One: An Overview of Arizona’s Death Penalty System
In this Chapter, we examined the demographics of Arizona’s death row, the statutory
evolution of Arizona’s death penalty scheme, and the progression of an ordinary death
penalty case through Arizona’s system from arrest to execution.
Chapter Two: Collection, Preservation and Testing of DNA and Other Types of Evidence
DNA testing has proved to be a useful law enforcement tool to establish guilt as well as
innocence. The availability and utility of DNA testing, however, depends on the State’s
laws and on its law enforcement agencies’ policies and procedures concerning the
collection, preservation, and testing of biological evidence. In this Chapter, we examined
Arizona’s laws, procedures, and practices concerning not only DNA testing, but also the
collection and preservation of all forms of biological evidence, and we assessed whether
Arizona complies with the ABA’s policies on the collection, preservation, and testing of
DNA and other types of evidence.

v

A summary of Arizona’s overall compliance with the ABA’s policies on the collection,
preservation, and testing of DNA and other types of evidence is illustrated in the chart
below. 1
Collection, Preservation, and Testing of
DNA and Other Types of Evidence
Compliance

In
Compliance

Partially in
Compliance 2

Recommendation
Recommendation #1: Preserve all biological
evidence for as long as the defendant remains
incarcerated.
Recommendation #2: Defendants and inmates
should have access to biological evidence, upon
request, and be able to seek appropriate relief
notwithstanding any other provision of the law.
Recommendation #3: Law enforcement
agencies should establish and enforce written
procedures and policies governing the
preservation of biological evidence.
Recommendation #4: Law enforcement
agencies should provide training and
disciplinary procedures to ensure preparedness
and accountability.
Recommendation #5: Ensure that adequate
opportunity exists for citizens and investigative
personnel
to
report
misconduct
in
investigations.
Recommendation #6: Provide adequate
funding to ensure the proper preservation and
testing of biological evidence.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance 3

Not
Applicable

X
X
X
X
X
X

While the State of Arizona has “a duty, in the interest of justice, to act in a timely manner
to ensure the preservation of evidence it is aware of[,] where that evidence is obviously
material and reasonably within its grasp,” there is no statewide requirement that all
biological evidence be preserved for as long as the defendant remains incarcerated.
Prosecutors and law enforcement agencies are allowed– and in some circumstances,
compelled– to dispose of items that were seized or otherwise obtained for use in a
criminal prosecution once the legal proceeding is no longer “subject to modification.”
While the statute broadly defines “subject to modification” to include all judicial outlets
for relief, there is no requirement that biological evidence be preserved through the
1

Where necessary, the recommendations contained in this chart and all subsequent charts were
condensed to accommodate spatial concerns. The condensed recommendations are not substantively
different from the recommendations contained in the Analysis section of each chapter.
2
Given that a majority of the ABA’s recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which the State of Arizona meets a portion, but not all, of
the recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
3
In this publication, the Project and the Assessment Team have attempted to note as accurately as
possible information relevant to the Arizona death penalty. The Project would welcome notification of any
omissions in this report so that they may be corrected in any future reprints.

vi

clemency process and up until execution. Despite this, the Arizona Capital Case
Commission reported in December 2002 that Arizona law enforcement officials do retain
evidence in all capital cases indefinitely.
Notably, in capital cases, the clerk of the Superior Court is required to permanently retain
the entire case file, which includes all original documents and evidence filed with the
court. While the clerk is not mandated to retain all biological evidence, s/he is required
to retain all biological evidence filed with the court for as long as the defendant remains
incarcerated. Lastly, if the defendant files a petition for post-conviction DNA testing, the
State must preserve throughout the entire proceeding all evidence in its possession or
control that could be subject to DNA testing and, in addition, the court may order the
preservation of some available biological evidence to replicate post-conviction DNA
testing.
To eliminate some of the identified problems in the collection and preservation of
biological evidence, the State of Arizona should require that law enforcement agencies
establish and enforce written procedures and policies governing the preservation of
biological evidence, as well as require that evidence be preserved for as long as the
defendant/inmate remains incarcerated.
To its credit, the State of Arizona has enacted a broad post-conviction DNA testing
statute, which has likely reduced the risk of executing innocent persons.
Chapter Three: Law Enforcement Identifications and Interrogations
Eyewitness misidentification and false confessions are two of the leading causes of
wrongful convictions. Incorrect identifications and confessions can mislead police,
prosecutors, defense attorneys, judges and juries into focusing the case on one person, too
often resulting in an erroneous conviction. In order to reduce the number of convictions
of innocent persons and to ensure the integrity of the criminal justice process, the rate of
eyewitness misidentifications and of false confessions must be reduced. In this Chapter,
we reviewed Arizona’s laws, procedures, and practices on law enforcement
identifications and interrogations and assessed whether they comply with the ABA’s
policies on law enforcement identifications and interrogations.
A summary of Arizona’s overall compliance with the ABA’s policies on law enforcement
identifications and interrogations is illustrated in the following chart.

vii

Law Enforcement Identifications and Interrogations
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: Law enforcement agencies
should adopt guidelines for conducting lineups and
photospreads in a manner that maximizes their
likely accuracy. Every set of guidelines should
address at least the subjects, and should
incorporate at least the social scientific teachings
and best practices, set forth in the American Bar
Associations’ Best Practices for Promoting the
Accuracy of Eyewitness Identification Procedures.
Recommendation #2: Law enforcement officers
and prosecutors should receive periodic training on
how to implement the guidelines for conducting
lineups and photospreads, and training on nonsuggestive techniques for interviewing witnesses.
Recommendation #3: Law enforcement agencies
and prosecutors offices should periodically update
the guidelines for conducting lineups and
photospreads to incorporate advances in social
scientific research and in the continuing lessons of
practical experience.
Recommendation #4: Videotape the entirety of
custodial interrogations at police precincts,
courthouses, detention centers, or other places
where suspects are held for questioning, or, where
videotaping is impractical, audiotape the entirety
of such custodial interrogations.
Recommendation #5: Ensure adequate funding to
ensure proper development, implementation, and
updating policies and procedures relating to
identifications and interrogations.
Recommendation #6: Courts should have the
discretion to allow a properly qualified expert to
testify both pre-trial and at trial on the factors
affecting eyewitness accuracy.
Recommendation #7: Whenever there has been an
identification of the defendant prior to trial, and
identity is a central issue in a case tried before a
jury, courts should use a specific instruction,
tailored to the needs of the individual case,
explaining the factors to be considered in gauging
lineup accuracy.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X

X

X

X
X
X

X

We commend the State of Arizona for taking certain measures which likely reduce the
risk of inaccurate eyewitness identifications and false confessions. For example:
•
•

Law enforcement officers in Arizona are required to complete a basic training
course that includes instruction on interviewing and questioning techniques;
At least twenty-eight police departments in Arizona regularly record the entirety
of custodial interrogations; and
viii

•

Arizona courts have created an instruction that provides the jury with factors to
consider when determining the reliability of eyewitness identifications.

Despite these measures, the State of Arizona does not require law enforcement agencies
to adopt procedures on identifications and interrogations. The Commission on Law
Enforcement Accreditation Standards for Law Enforcement Agencies, Inc. (CALEA),
however, provides a framework for law enforcement agencies to adopt procedures on
identifications and interrogations. A number of law enforcement agencies in Arizona
have obtained accreditation under CALEA, which requires agencies to establish written
directives on “conducting follow-up investigations,” including identifying suspects.
CALEA does not require these agencies to adopt specific procedures on conducting
lineups and photospreads, however. It is possible that in complying with CALEA, an
agency could create specific procedures for lineups and photospreads that are in
compliance with the ABA’s Recommendations, but we were unable to obtain the written
directives adopted by law enforcement agencies statewide to assess whether they comply
with the Recommendations. In the four law enforcement manuals we did obtain, none of
the law enforcement agencies appear to mandate compliance with the ABA
Recommendations, despite evidence that some or all of these agencies comply in
practice.
In order to ensure that all law enforcement agencies conduct lineups and photospreads in
a manner that maximizes their likely accuracy, the State of Arizona should require all law
enforcement agencies to adopt procedures on lineups and photospreads that are consistent
with the ABA’s Recommendations.
Chapter Four: Crime Laboratories and Medical Examiner Offices
With courts’ increased reliance on forensic evidence and the questionable validity and
reliability of recent tests performed at a number of unaccredited and accredited crime
laboratories across the nation, the importance of crime laboratory and medical examiner
office accreditation, forensic and medical examiner certification, and adequate funding of
these laboratories and offices cannot be understated. In this Chapter, we examined these
issues as they pertain to Arizona and assessed whether Arizona’s laws, procedures, and
practices comply with the ABA’s policies on crime laboratories and medical examiner
offices.
A summary of Arizona’s overall compliance with the ABA’s policies on crime
laboratories and medical examiner offices is illustrated in the following chart

ix

Crime Laboratories and Medical Examiner Offices
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: Crime laboratories and
medical examiner offices should be accredited,
examiners should be certified, and procedures
should be standardized and published to ensure
the validity, reliability, and timely analysis of
forensic evidence.
Recommendation #2: Crime laboratories and
medical examiner offices should be adequately
funded.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X

Arizona does not require crime laboratories or medical examiner offices to be accredited,
but all crime laboratories in the Department of Public Safety Scientific Criminal Analysis
Bureau (Bureau), in addition to the Mesa Police Department Crime Laboratory, Phoenix
Police Department Laboratory Services Bureau, Scottsdale Police Department Crime
Laboratory, and the Tucson City-County Crime Laboratory, are accredited and are
required by the accrediting body to adopt written standards and procedures on handling,
preserving, and testing forensic evidence. Neither the accrediting body nor Arizona
statutory law, however, require Bureau crime laboratories to publish these standards and
procedures, nor must they be published or made available for inspection before becoming
effective. Therefore, the contents of the Bureau standards and procedures, along with
those of other crime laboratories around the State, are unknown.
In addition to the mystery surrounding the Bureau’s standards and procedures, the
adequacy of the funding provided to Bureau crime laboratories also is in question.
According to the staff of the Arizona legislature’s Joint Legislative Budget Committee,
the Bureau’s staffing increases have not kept pace with this increasing caseload. As of
May 2004, the Bureau had 60,000 samples waiting to be analyzed. It is estimated that
between two and ten years may be needed for crime-lab technicians to process the
backlog and keep pace with the new samples that arrive for processing.
The Bureau laboratories are not the only ones with backlog problems. For example, as of
June 2004, the Tucson laboratory took 119 days to process evidence in its high-priority
cases that include murders, sexual assaults, and cases going to trial. As the Tucson Police
Department Crime Lab Superintendent explained, “We really aren’t staffed right and
don’t have the resources available.”
Lastly, not only does Arizona fail to require that county medical examiners be accredited,
but the State, while generally requiring county medical examiners to be “licensed
physician[s] in good standing certified in pathology and skilled in forensic pathology,”
allows each county board of supervisors to decide against appointing a county medical
examiner and instead establish a list of licensed physicians available to perform a county
medical examiner’s duties. Unfortunately, should a county board of supervisors decide
x

against appointing a county medical examiner, the physicians appointed to the list are not
required to be certified in pathology or skilled in forensic pathology.
Chapter Five: Prosecutorial Professionalism
The prosecutor plays a critical role in the criminal justice system. The character, quality,
and efficiency of the whole system is shaped in great measure by the manner in which the
prosecutor exercises his/her broad discretionary powers, especially in capital cases, where
the prosecutor has enormous discretion in deciding whether or not to seek the death
penalty. In this Chapter, we examined Arizona’s laws, procedures, and practices relevant
to prosecutorial professionalism and assessed whether they comply with the ABA’s
policies on prosecutorial professionalism.
A summary of Arizona’s overall compliance with the ABA’s policies on prosecutorial
professionalism is illustrated in the chart below.
Prosecutorial Professionalism
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Each prosecutor’s office
should have written polices governing the
exercise of prosecutorial discretion to ensure the
fair, efficient, and effective enforcement of
criminal law.
Recommendation #2: Each prosecutor’s office
should establish procedures and policies for
evaluating cases that rely on eyewitness
identification, confessions, or the testimony of
jailhouse snitches, informants, and other
witnesses who receive a benefit.
Recommendation #3: Prosecutors should fully
and timely comply with all legal, professional,
and ethical obligations to disclose to the defense
information, documents, and tangible objects and
should permit reasonable inspection, copying,
testing, and photographing of such disclosed
documents and tangible objects.
Recommendation #4: Each jurisdiction should
establish policies and procedures to ensure that
prosecutors and others under the control or
direction of prosecutors who engage in
misconduct of any kind are appropriately
disciplined, that any such misconduct is disclosed
to the criminal defendant in whose case it
occurred, and that the prejudicial impact of any
such misconduct is remedied.
Recommendation #5: Prosecutors should ensure
that law enforcement agencies, laboratories, and
other experts under their direction or control are
aware of and comply with their obligation to
inform prosecutors about potentially exculpatory
or mitigating evidence.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X

X

X

X
xi

Not
Applicable

Prosecutorial Professionalism (Con’t.)
Compliance

In
Compliance

Recommendation
Recommendation #6: The jurisdiction should
provide funds for the effective training,
professional development, and continuing
education of all members of the prosecution
team, including training relevant to capital
prosecutions.

Partially in
Compliance

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

The State of Arizona does not require county attorney’s offices to establish policies on
the exercise of prosecutorial discretion or on the evaluation of cases that rely upon
eyewitness identification, confessions, or the testimony of jailhouse snitches, informants,
and other witnesses who receive a benefit. The State of Arizona, however, has taken
certain measures to promote the fair, efficient, and effective enforcement of criminal law,
such as:
•
•
•

•

The State of Arizona has entrusted the State Bar of Arizona and the Disciplinary
Commission of the Arizona Supreme Court with investigating grievances and
disciplining members of the State Bar of Arizona, including prosecutors.
The Arizona Supreme Court has established the Arizona Rules of Professional
Conduct, which addresses prosecutorial discretion in the context of the role and
responsibilities of prosecutors.
The State of Arizona has established the Arizona Prosecution Attorneys’
Advisory Council to assist prosecuting attorneys throughout the State in a number
of ways, including: preparing manuals of procedure; assisting in the preparation
of trial briefs, forms, and instructions; conducting research and studies that would
be of interest and value to all prosecuting attorneys and their staffs; providing
training programs for prosecuting attorneys and other criminal justice personnel;
maintaining liaison contact with study commissions and agencies of all branches
of local, state, and federal government that will be of benefit to law enforcement
and the fair administration of justice in the State; and establishing training
standards for prosecuting attorneys and assisting in meeting those standards by
promulgating rules and procedures relating to such standards.
The Arizona Supreme Court has stated by rule and through case law that
prosecutors are responsible for disclosing not only evidence of which they are
aware, but also material evidence known to others acting on the State’s behalf.

Chapter Six: Defense Services
Effective capital case representation requires substantial specialized training and
experience in the complex laws and procedures that govern a capital case, as well as full
and fair compensation to defense attorneys and resources for investigators and experts.
Individual jurisdictions must address representation issues in a way that will ensure all
capital defendants receive effective representation during all stages of their cases. In this
xii

Chapter, we examined Arizona’s laws, procedures, and practices relevant to defense
services and assessed their compliance with the ABA’s policies on defense services.
A summary of Arizona’s overall compliance with the ABA’s policies on defense services
is illustrated in the chart below.
Defense Services
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Guideline 4.1 of the ABA
Guidelines on the Appointment and Performance
of Defense Counsel in Death Penalty Cases
(ABA Guidelines)—The Defense Team and
Supporting Services
Recommendation #2: Guideline 5.1 of the ABA
Guidelines—Qualifications of Defense Counsel
Recommendation #3: Guideline 3.1 of the ABA
Guidelines—Designation of a Responsible
Agency
Recommendation #4: Guideline 9.1 of the ABA
Guidelines—Funding and Compensation
Recommendation #5: Guideline 8.1 of the ABA
Guidelines—Training

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X
X
X
X

Arizona’s indigent defense services is a mixed and uneven system that lacks level
oversight and standards and that does not provide uniform, quality representation to
indigent defendants in all capital proceedings across the State. The State’s failure to
adopt a statewide public defender office for anything other than state post-conviction
proceedings, mandate the establishment of public defender offices providing coverage
within each county, adequately fund indigent defense services in each county, or to
implement close oversight of indigent legal services at the county level has resulted in the
State being incapable of delivering quality counsel in all capital cases.
In addition, Arizona’s indigent capital defense system falls short of complying with the
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases (Guidelines) for a number of reasons:
•

•

The State of Arizona does not guarantee counsel in clemency proceedings.
Indigent defendants charged with a capital felony for which the death penalty is
being sought have a right to appointed counsel at trial, on direct appeal, in state
post-conviction proceedings, and in federal habeas corpus. However, indigent
death-sentenced inmates are not entitled to appointed counsel for clemency
proceedings.
The State of Arizona has failed to remove the judiciary from the process of
appointing counsel.

xiii

•
•
•

•

The State of Arizona does not require that indigent defendants charged with or
convicted of a capital felony be appointed two attorneys at any stage of the
proceedings other than at trial.
Requests for experts are not ex parte unless “a proper showing is made
concerning the need for confidentiality.”
Despite the fact that the Arizona Capital Case Commission unanimously
recognized that “establishing a statewide public defender office for capital cases
would be the best and most effective way to improve death penalty trials in
Arizona,” the State of Arizona still does not vest in one statewide independent
appointing authority the responsibility for training, selecting, and monitoring
attorneys who represent indigent individuals charged with or convicted of a
capital felony pre-trial, at trial, on appeal, or in state post-conviction proceedings.
The State of Arizona provides only one to two percent of the funding for the cost
of capital representation, significantly underfunding these indigent defense
services.

Chapter Seven: The Direct Appeal Process
The direct appeal process in capital cases is designed to correct any errors in the trial
court’s findings of fact and law and to determine whether the trial court’s actions during
the guilt/innocence and sentencing phases of the trial were unlawful, excessively severe,
or an abuse of discretion. One of the best ways to ensure that the direct appeal process
works as it is intended is through meaningful comparative proportionality review, the
process through which a sentence of death is compared with sentences imposed on
similarly situated defendants to ensure that the sentence is not disproportionate. In this
Chapter, we examined Arizona’s laws, procedures, and practices relevant to the direct
appeal process and assessed whether they comply with the ABA’s policies on the direct
appeal process.
A summary of Arizona’s overall compliance with the ABA’s policies on the direct appeal
process is illustrated in the following chart.

xiv

The Direct Appeal Process
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: In order to (1) ensure that
the death penalty is being administered in a
rational, non-arbitrary manner, (2) provide a
check on broad prosecutorial discretion, and (3)
prevent discrimination from playing a role in the
capital decision making process, direct appeals
courts
should
engage
in
meaningful
proportionality review that includes cases in
which a death sentence was imposed, cases in
which the death penalty was sought but not
imposed, and cases in which the death penalty
could have been sought but was not.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

The Arizona Supreme Court is not required to undertake a proportionality review in
capital cases. As late as 1991, the Court would determine whether a death sentence was
“excessive or disproportionate to the penalty imposed in similar cases, considering both
the crime and the defendant.” In 1992, however, the Arizona Supreme Court held that
proportionality reviews were not mandated by statute or by the United States or Arizona
Constitutions. Since then, the Court has rejected any arguments that the absence of
proportionality review denies capital defendants equal protection and due process of law,
or that it is tantamount to cruel and unusual punishment.
Today, Arizona has no codified procedures, nor any other binding authority, to help
ensure proportionate death sentencing. To ensure that a sentence of death is not
excessively severe or an abuse of discretion and that prosecutorial discretion to seek the
death penalty is evenhandedly exercised across the State, Arizona should immediately
implement meaningful proportionality review that includes a review of cases in which the
death penalty was imposed, cases in which the death penalty was sought but not imposed,
and cases in which the death penalty could have been sought but was not.
Chapter Eight: State Post-Conviction Proceedings
The importance of state post-conviction proceedings to the fair administration of justice
in capital cases cannot be overstated. Because many capital defendants receive
inadequate counsel at trial and on appeal, state post-conviction proceedings often provide
the first real opportunity to establish meritorious constitutional claims. For this reason,
all post-conviction proceedings should be conducted in a manner designed to permit
adequate development and judicial consideration of all claims. In this Chapter, we
examined Arizona’s laws, procedures, and practices relevant to state post-conviction
proceedings and assessed their compliance with the ABA’s policies on state postconviction.

xv

A summary of Arizona’s overall compliance with the ABA’s policies on state postconviction proceedings is illustrated in the chart below.
State Post-Conviction Proceedings
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation
#1:
All
post-conviction
proceedings at the trial court level should be
conducted in a manner designed to permit adequate
development and judicial consideration of all claims.
Trial courts should not expedite post-conviction
proceedings unfairly; if necessary, courts should stay
executions to permit full and deliberate consideration
of claims. Courts should exercise independent
judgment in deciding cases, making findings of fact
and conclusions of law only after fully and carefully
considering the evidence and the applicable law.
Recommendation #2: The state should provide
meaningful
discovery
in
post-conviction
proceedings. Where courts have discretion to permit
such discovery, the discretion should be exercised to
ensure full discovery.
Recommendation #3: Judges should provide
sufficient time for discovery and should not curtail
discovery as a means of expediting the proceedings.
Recommendation #4: When deciding postconviction claims on appeal, state appellate courts
should address explicitly the issues of fact and law
raised by the claims and should issue opinions that
fully explain the bases for dispositions of claims.
Recommendation #5: On the initial state postconviction application, state post-conviction courts
should apply a “knowing, understanding and
voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial or
on appeal.
Recommendation #6: When deciding postconviction claims on appeal, state appellate courts
should apply a “knowing, understanding and
voluntary” standard for waivers of claims of
constitutional error not raised properly at trial or on
appeal and should liberally apply a plain error rule
with respect to errors of state law in capital cases.
Recommendation #7: The state should establish
post-conviction defense organizations to represent
capital defendants in state post-conviction, federal
habeas corpus, and clemency proceedings.
Recommendation #8: The state should appoint postconviction defense counsel whose qualifications are
consistent with the ABA Guidelines on the
Appointment and Performance of Death Counsel in
Death Penalty Cases. The state should compensate
appointed counsel adequately and, as necessary,
provide sufficient funds for investigators and experts.

Insufficient
Information
to Determine
Statewide
Compliance

X

X
X
X

X

X

X

X

xvi

Not
Applicable

State Post-Conviction Proceedings (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #9: State courts should give full
retroactive effect to U.S. Supreme Court decisions in
all proceedings, including second and successive
post-conviction proceedings, and should consider in
such proceedings the decisions of federal appeals and
district courts.
Recommendation #10: State courts should permit
second and successive post-conviction proceedings
in capital cases where counsels’ omissions or
intervening court decisions resulted in possibly
meritorious claims not previously being raised,
factually or legally developed, or accepted as legally
valid.
Recommendation #11: State courts should apply the
harmless error standard of Chapman v. California,
requiring the prosecution to show that a
constitutional error is harmless beyond a reasonable
doubt.
Recommendation #12: During the course of a
moratorium, a “blue ribbon” commission should
undertake a review of all cases in which individuals
have been either wrongfully convicted or wrongfully
sentenced to death and should recommend ways to
prevent such wrongful results in the future.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X

X

X

X

The State of Arizona has adopted some laws and procedures that facilitate the adequate
development and judicial consideration of claims—for example, courts permit second
and successive petitions under certain circumstances. Furthermore, we applaud the
recent creation of a state capital post-conviction public defender office. Some laws and
procedures do not facilitate the adequate development and judicial consideration of
claims, however, such as:
•

•

Post-conviction cases in Arizona usually are assigned to the original trial-level
sentencing judge. Although the sentencing judge has knowledge of relevant facts
and issues in the case, a potential for or the appearance of bias exists under this
scenario, as post-conviction proceedings stem from a decision in which the same
judge presided. A judge’s ability to exercise independent judgment, therefore,
may or may appear to be compromised, resulting in a petitioner not being
afforded adequate judicial consideration of his/her claims; and
Arizona law only applies the “knowing, understanding, and voluntary” standard to
waivers of constitutional and state law claims that are of “sufficient constitutional
magnitude,” meaning that the review of potentially viable claims can be barred
even without the petitioner’s “knowing, understanding, and voluntary” waiver of
those claims.

xvii

Chapter Nine: Clemency
Given that the clemency process is the final avenue of review available to a death-row
inmate, it is imperative that clemency decision makers evaluate all of the factors bearing
on the appropriateness of the death sentence without regard to constraints that may limit a
court’s or jury’s decision making. In this Chapter, we reviewed Arizona’s laws,
procedures, and practices concerning the clemency process, including, but not limited to,
the Arizona Board of Executive Clemency’s criteria for considering and deciding
petitions and inmates’ access to counsel, and assessed whether they comply with the
ABA’s policies on clemency.
A summary of Arizona’s overall compliance with the ABA’s policies on clemency is
illustrated in the chart below.
Clemency
In
Compliance

Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: The clemency decision
making process should not assume that the
courts have reached the merits on all issues
bearing on the death sentence in a given case;
decisions should be based upon an independent
consideration of facts and circumstances.
Recommendation #2: The clemency decision
making process should take into account all
factors that might lead the decision maker to
conclude that death is not the appropriate
punishment.
Recommendation #3: Clemency decision
makers should consider any pattern of racial or
geographic disparity in carrying out the death
penalty in the jurisdiction.
Recommendation #4: Clemency decision
makers should consider the inmate’s mental
retardation, mental illness, or mental
competency, if applicable, the inmate’s age at
the time of the offense, and any evidence of
lingering doubt about inmate’s guilt.
Recommendation #5: Clemency decision
makers should consider an inmate’s possible
rehabilitation or performance of positive acts
while on death row.
Recommendation #6: Death row inmates
should be represented by counsel and such
counsel should have qualifications consistent
with the ABA Guidelines on the Appointment
and Performance of Counsel in Death Penalty
Cases.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X
X
X
X
X

Clemency (Con’t.)

xviii

Not
Applicable

Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #7: Prior to clemency
hearings, counsel should be entitled to
compensation and access to investigative and
expert resources and provided with sufficient
time to develop claims and to rebut state’s
evidence.
Recommendation #8: Clemency proceedings
should be formally conducted in public and
presided over by the Governor or other
officials involved in making the determination.
Recommendation #9: If two or more
individuals are responsible for clemency
decisions or for making recommendations to
clemency decision makers, their decisions or
recommendations should be made only after
in-person meetings with petitioners.
Recommendation #10: Clemency decision
makers should be fully educated and should
encourage public education about clemency
powers and limitations on the judicial system’s
ability to grant relief under circumstances that
might warrant grants of clemency.
Recommendation
#11:
Clemency
determinations should be insulated from
political considerations or impacts.

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X
X
X

X
X

The Arizona Board of Executive Clemency (the Board) is not required to conduct any
specific type of review in considering petitions for commutations. No statutory
restrictions exist regarding what the Board may consider in making its recommendation
to the Governor and according to the current Board Chair, the Board will consider
everything the applicant submits. Thus, while the Board clearly is not required to
consider any of the factors included in Recommendations #2 through #5, it is unclear
whether this information is being considered in practice.
In conducting commutation reviews, the Board will hold a one or two-part public hearing
on the merits of an inmate’s request for clemency. The Phase I hearing, which the Board
may waive for death-row inmates, will be held without the inmate being present,
although anyone can submit relevant written materials or testify orally. The Phase II
hearing consists of, among other things, an interview of the applicant and a review of “all
relevant information.” Upon the conclusion of the Phase II hearing, the Board will render
a “final decision” as to whether to recommend clemency to the Governor, but the power
to grant or deny clemency lies with the Governor, who, in making this decision may grant
or deny clemency for any reason s/he “deems proper.” If the Governor grants clemency,
s/he must publish the reasons for the clemency grant in a newspaper of general
circulation and a copy of the Governor’s rationale also must be filed with the Secretary of
State. In addition, the Governor must provide the legislature with the details of each case
in which clemency was granted at the start of each regular legislative session. There is
no requirement that the Governor explain his/her reasoning for denying clemency.
xix

Not only are the criteria considered by the Board and the Governor unknown, but other
parts of the clemency decision-making process are problematic as well. For example:
•
•

Once a recommendation is made by the Board, the Governor’s process for
granting or denying clemency appears to be shielded from public scrutiny,
particularly in clemency denials.
There is no requirement that the Board or the Governor (or his/her representative)
meets with the petitioning inmate.

Given this, the State of Arizona should adopt more explicit factors to guide the
consideration of clemency petitions and open the decision making process to ensure
transparency.
Chapter Ten: Voir Dire and Capital Jury Instructions
Due to the complexities inherent in capital proceedings, trial judges must present fully
and accurately, through jury instructions, the applicable law to be followed and the
“awesome responsibility” of deciding whether another person will live or die. Often,
however, jury instructions are poorly written and poorly conveyed, which confuses the
jurors about the applicable law and the extent of their responsibilities. In this Chapter,
we reviewed Arizona’s laws, procedures, and practices on capital jury instructions and
assessed whether they comply with the ABA’s policies on capital jury instructions.
A summary of Arizona’s overall compliance with the ABA’s policies on capital jury
instructions is illustrated in the chart below.
Capital Jury Instructions
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Jurisdictions should work
with certain specialists and jurors to evaluate the
extent to which jurors understand instructions,
revise the instructions as necessary, and monitor
the extent to which jurors understand revised
instructions to permit further revision as
necessary.
Recommendation #2: Jurors should receive
written copies of court instructions to consult
while the court is instructing them and while
conducting deliberations.
Recommendation #3: Trial courts should
respond meaningfully to jurors’ requests for
clarification of instructions.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X
X

xx

Not
Applicable

Capital Jury Instructions (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #4: Trial courts should instruct
jurors clearly on available alternative punishments
and should, upon the defendant’s request during
the sentencing phase, permit parole officials or
other knowledgeable witnesses to testify about
parole practices in the state.
Recommendation #5: Trial courts should instruct
jurors that a juror may return a life sentence, even
in the absence of any mitigating factor and even
where an aggravating factor has been established
beyond a reasonable doubt, if the juror does not
believe that the defendant should receive the death
penalty.
Recommendation #6: Trial courts should instruct
jurors that residual doubt about the defendant’s
guilt is a mitigating factor. Jurisdictions should
implement Model Penal Code section 210.3(1)(f),
under which residual doubt concerning the
defendant’s guilt would, by law, require a
sentence less than death.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

The U.S. Supreme Court’s 2002 decision in Ring v. Arizona invalidated Arizona’s capital
sentencing scheme and required the State to use juries, instead of judges, in capital
sentencing. Because Arizona did not use jury sentencing prior to the Ring decision, the
State consequently did not have pattern jury instructions regarding capital sentencing.
While the Criminal Jury Instruction Committee of the Arizona State Bar currently is
working to draft pattern jury instructions for death penalty cases and expects to have
instructions drafted and promulgated by October 2006, the content and future efficacy of
these pattern jury instructions are unknown. In the meantime, judges have been largely
on their own in deciding what jury instructions to give in capital cases. While there is
case law on jury instructions that can help instruct individual judges as to the legality or
illegality of individual instructions, Arizona case law does not provide an appropriate
level of guidance.
Some additional problems include:
•

As the Arizona Supreme Court’s Committee on More Effective Use of Jurors
noted in 1993, jurors too often have difficulty understanding jury instructions.
The Committee went on to recognize the “failure of too many judges to fully and
fairly respond to questions” from the jury and recommended that judges receive
instructions on how best to respond to jury questions. Given the awesome
responsibility of deciding between life and death that was given to Arizona juries
in 2002, this has taken on an increased importance, yet it does not appear that
Arizona has taken steps to provide judges any additional guidance;
xxi

•

Arizona law provides three sentencing options for people convicted of a capital
crime: death, imprisonment for life, and imprisonment for natural life. Currently,
Arizona law does not require courts to instruct the jury on the definitions of
“imprisonment for life” or “imprisonment for natural life.” In order to enable
capital jurors to make informed sentencing decisions and in light of the fact that
capital jurors generally underestimate the total number of years defendants
convicted of capital murder, but not sentenced to death, spend in prison, the State
of Arizona should provide definitions of the various sentencing options.

Chapter Eleven: Judicial Independence
With increasing frequency, judicial elections, appointments, and confirmations are being
influenced by consideration of judicial nominees or candidates’ purported views of the
death penalty and/or of judges’ decisions in capital cases. This erosion of judicial
independence increases the possibility that judges will be selected, elevated, and retained
in office by a process that ignores the larger interests of justice and fairness, and instead
focuses narrowly on the issue of capital punishment. In this Chapter, we reviewed
Arizona’s laws, procedures, and practices on the judicial election/appointment and
decision making processes and assessed whether they comply with the ABA’s policies on
judicial independence.
A summary of Arizona’s overall compliance with the ABA’s policies on judicial
independence is illustrated in the chart below.
Judicial Independence
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: States should examine the
fairness of their judicial election/appointment
process and should educate the public about the
importance of judicial independence and the
effect of unfair practices on judicial
independence.
Recommendation #2: A judge who has made
any promise regarding his/her prospective
decisions in capital cases that amounts to
prejudgment should not preside over any capital
case or review any death penalty decision in the
jurisdiction.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

X

X

xxii

Not
Applicable

Judicial Independence (Con’t.)
Compliance

In
Compliance

Recommendation
Recommendation #3: Bar associations and
community leaders should speak out in defense of
judges who are criticized for decisions in capital
cases; bar associations should educate the public
concerning the roles and responsibilities of
judges and lawyers in capital cases; bar
associations and community leaders should
oppose any questioning of candidates for judicial
appointment or re-appointment concerning their
decisions in capital cases; and purported views on
the death penalty or on habeas corpus should not
be litmus tests or important factors in the
selection of judges.
Recommendation #4: A judge who observes
ineffective lawyering by defense counsel should
inquire into counsel’s performance and, where
appropriate, take effective actions to ensure
defendant receives a proper defense.
Recommendation #5: A judge who determines
that prosecutorial misconduct or other unfair
activity has occurred during a capital case should
take immediate action to address the situation and
to ensure the capital proceeding is fair.
Recommendation #6: Judges should do all
within their power to ensure that defendants are
provided with full discovery in capital cases.

Partially in
Compliance

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X
X
X

The Arizona judicial selection process reflects a blend of two systems. On one hand, the
Arizona Constitution requires all state appellate court judges and Superior Court judges
for counties with a population of 250,000 or more (presently only Maricopa and Pima
counties) to be appointed by the Governor on the basis of merit from a list of nominees
compiled by a nominating commission. On the other hand, the State Constitution
requires Superior Court judges from counties with a population of fewer than 250,000 to
be elected in nonpartisan elections, unless voters select the merit selection system.
The State of Arizona has taken measures to promote judicial independence, for example:
•
•

Arizona’s predominant reliance on a merit-based judicial appointment system has
insulated the judicial process from political pressures and campaign demands, and
in turn, protected the independence of the judiciary;
The State of Arizona has tried to limit the effects of politics in its judicial
selection process by regulating the political composition of both the nominating
commissions and the judicial nominees referred to the Governor for appointment;
and
xxiii

•

The Arizona Commission on Judicial Conduct recently opened its disciplinary
process, making complaints filed against judges public as of January 1, 2006.

Chapter Twelve: Racial and Ethnic Minorities
A pattern of racial discrimination persists today, in part because courts tolerate actions by
prosecutors, defense lawyers, trial judges, and juries that can infect the entire trial process
with a racial impact. To eliminate the impact of race in the administration of the death
penalty, the ways in which race infects the system must be identified and strategies must
be devised to root out discriminatory practices. In this Chapter, we examined Arizona’s
laws, procedures, and practices pertaining to the treatment of racial and ethnic minorities
and assessed whether they comply with the ABA’s policies.
A summary of Arizona’s overall compliance with the ABA’s policies on racial and ethnic
minorities and the death penalty is illustrated in the chart below.
Racial and Ethnic Minorities
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Jurisdictions should fully
investigate and evaluate the impact of racial
discrimination in their criminal justice systems and
develop strategies that strive to eliminate it.
Recommendation #2: Jurisdictions should collect
and maintain data on the race of defendants and
victims, on the circumstances of the crime, on all
aggravating and mitigating circumstances, and on
the nature and strength of the evidence for all
potential capital cases (regardless of whether the
case is charged, prosecuted, or disposed of as a
capital case). This data should be collected and
maintained with respect to every stage of the
criminal justice process, from reporting of the
crime through execution of the sentence.
Recommendation #3: Jurisdictions should collect
and review all valid studies already undertaken to
determine the impact of racial discrimination on
the administration of the death penalty and should
identify and carry out any additional studies that
would help determine discriminatory impacts on
capital cases. In conducting new studies, states
should collect data by race for any aspect of the
death penalty in which race could be a factor.
Recommendation #4: Where patterns of racial
discrimination are found in any phase of the death
penalty administration, jurisdictions should
develop, in consultation with legal scholars,
practitioners, and other appropriate experts,
effective remedial and prevention strategies to
address the discrimination.

X

X

X

X

xxiv

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

Racial and Ethnic Minorities (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #5: Jurisdictions should adopt
legislation explicitly stating that no person shall
be put to death in accordance with a sentence
sought or imposed as a result of the race of the
defendant or the race of the victim. To enforce
this law, jurisdictions should permit defendants
and inmates to establish prima facie cases of
discrimination based upon proof that their cases
are part of established racially discriminatory
patterns. If a prima facie case is established, the
state should have the burden of rebutting it by
substantial evidence.
Recommendation #6: Jurisdictions should
develop and implement educational programs
applicable to all parts of the criminal justice
system to stress that race should not be a factor in
any aspect of death penalty administration. To
ensure that such programs are effective,
jurisdictions also should impose meaningful
sanctions against any state actor found to have
acted on the basis of race in a capital case.
Recommendation #7: Defense counsel should be
trained to identify and develop racial
discrimination claims in capital cases.
Jurisdictions also should ensure that defense
counsel are trained to identify biased jurors
during voir dire.
Recommendation #8: Jurisdictions should
require jury instructions indicating that it is
improper to consider any racial factors in their
decision making and that they should report any
evidence of racial discrimination in jury
deliberations.
Recommendation #9: Jurisdictions should
ensure that judges recuse themselves from capital
cases when any party in a given case establishes a
reasonable basis for concluding that the judge’s
decision making could be affected by racially
discriminatory factors.
Recommendation #10: States should permit
defendants or inmates to raise directly claims of
racial discrimination in the imposition of death
sentences at any stage of judicial proceedings,
notwithstanding any procedural rule that
otherwise might bar such claims, unless the state
proves in a given case that a defendant or inmate
has knowingly and intelligently waived the claim.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

X

X

X

Whatever the cause, Arizona’s death penalty system reflects racial disparities,
particularly those associated with the race of the victim. For instance, the Arizona
Capital Case Commission reported that from 1995 through 1999, the percentage of
xxv

indictments resulting in death sentences for cases in which both the defendant and the
victim were white was nearly eight times higher than those cases in which both the
defendant and the victim were minorities. During this same period, the percentage of
indictments resulting in death sentences for cases consisting of a minority defendant and
a white victim was five times higher than those cases consisting of a white defendant and
a minority victim. According to the Commission’s own data, prosecutors statewide also
opted to seek the death penalty less frequently when the homicide victim was a minority,
more frequently when the victim was white. Judges also opted to impose the death
penalty less frequently when the homicide victim was a minority, more frequently when
the homicide victim was white.
Furthermore, while the Arizona Capital Case Commission has the data necessary to
conduct a more statistically sophisticated study of possible racial disparities in capital
sentencing and the Commission recognized the need for additional study, no further
studies have been released.
Chapter Thirteen: Mental Retardation and Mental Illness
In Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court held the execution of
mentally retarded offenders to be unconstitutional. This holding, however, does not
guarantee that individuals with mental retardation will not be executed, as each state has
the authority to adopt its own rules for determining whether a capital defendant is
mentally retarded. This discretion includes, but is not limited to, the ability to define
mental retardation and the burden of proof for mental retardation claims. In this Chapter,
we reviewed Arizona’s laws, procedures, and practices pertaining to mental retardation
and the death penalty and assessed their compliance with the ABA’s policies on mental
retardation and the death penalty.
A summary of Arizona’s overall compliance with the ABA’s policies on mental
retardation and the death penalty is illustrated in the following chart.
Mental Retardation and Mental Illness
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: Jurisdictions should bar
the execution of individuals who have mental
retardation, as defined by the American
Association on Mental Retardation. Whether
the definition is satisfied in a particular case
should be based upon a clinical judgment, not
solely upon a legislatively prescribed IQ
measure, and judges and counsel should be
trained to apply the law fully and fairly. No IQ
maximum lower than 75 should be imposed in
this regard. Testing used in arriving at this
judgment need not have been performed prior to
the crime.

X

xxvi

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

Mental Retardation and Mental Illness (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #2: All actors in the criminal
justice system should be trained to recognize
mental retardation in capital defendants and
death-row inmates.
Recommendation #3: Jurisdictions should
ensure that persons who may have mental
retardation are represented by attorneys who
fully appreciate the significance of their clients’
mental limitations. These attorneys should have
sufficient training, funds, and resources.
Recommendation #4: For cases commencing
after Atkins v. Virginia or the state’s ban on the
execution of the mentally retarded (the earlier of
the two), the determination of whether a
defendant has mental retardation should occur as
early as possible in criminal proceedings,
preferably prior to the guilt/innocence phase of a
trial and certainly before the penalty stage of a
trial.
Recommendation #5: The burden of disproving
mental retardation should be placed on the
prosecution, where the defense has presented a
substantial showing that the defendant may have
mental retardation. If, instead, the burden of
proof is placed on the defense, its burden should
be limited to proof by a preponderance of the
evidence.
Recommendation
#6:
During
police
investigations and interrogations, special steps
should be taken to ensure that the Miranda rights
of a mentally retarded person are sufficiently
protected and that false, coerced, or garbled
confessions are not obtained or used.
Recommendation #7: The jurisdiction should
have in place mechanisms to ensure that, during
court proceedings, the rights of mentally retarded
persons are protected against “waivers” that are
the product of their mental disability.

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X

X

X

X

X

The State of Arizona enacted a statute prohibiting the execution of mentally retarded
offenders in 2001, a year before the U.S. Supreme Court decided Atkins v. Virginia.
Because the original Arizona statute only dealt with prospective cases of mentally
retarded defendants, the legislature amended the statute in 2002 to comply with the
retroactive nature of the Atkins decision. Some of the procedures adopted by the State of
Arizona to determine mental retardation are particularly problematic.
•

While Arizona’s statutory and case law definition of mental retardation is similar
to the American Association of Mental Retardation’s (AAMR) definition, its
definition of subaverage general intellectual functioning appears to be more
xxvii

•

restrictive. In reliance on Atkins, the Arizona Supreme Court has stated that an
“IQ below 70-75 indicates subaverage intellectual functioning.” However, if each
IQ test is administered as dictated by Arizona statute, the defendant will not be
immune from execution on the grounds that s/he has mental retardation if the
defendant has an IQ score higher than seventy on each test. It consequently is
unclear whether the State of Arizona considers IQ scores between seventy and
seventy-five to indicate significantly subaverage intellectual functioning.
Furthermore, the statute allows for a determination of mental retardation to be
made solely on the basis of an IQ score.
The State of Arizona places the burden of proving mental retardation on the
defendant by “clear and convincing evidence,” rather than requiring the
prosecution to disprove the defendant’s substantial showing of mental retardation,
as required by Recommendation #5. Only if the trial court determines that the
defendant has an IQ of sixty-five or below is the defendant entitled to a rebuttable
presumption of mental retardation.

xxviii

INTRODUCTION
Fairness and accuracy together form the foundation of the American criminal justice
system. As our capital punishment system now stands, however, we fall short in
protecting these bedrock principles in all cases. Our system cannot claim to provide due
process or protect the innocent unless it provides a fair and accurate system for every
person who faces the death penalty.
Over the course of the past thirty years, the American Bar Association (ABA) has
become increasingly concerned that there is a crisis in our country’s death penalty system
and that capital jurisdictions too often provide neither fairness nor accuracy. In response
to this concern, on February 3, 1997, the ABA called for a nationwide moratorium on
executions until serious flaws in the system are identified and eliminated. The ABA
urges capital jurisdictions to (1) ensure that death penalty cases are administered fairly
and impartially, in accordance with due process, and (2) minimize the risk that innocent
persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and
Responsibilities, created the Death Penalty Moratorium Implementation Project (the
Project). The Project collects and monitors data on domestic and international death
penalty developments; conducts analyses of governmental and judicial responses to death
penalty administration issues; publishes periodic reports; encourages lawyers and bar
associations to press for moratoriums and reforms in their jurisdictions; convenes
conferences to discuss issues relevant to the death penalty; and encourages state
government leaders to establish moratoriums, undertake detailed examinations of capital
punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project decided in February 2003 to
examine a number of U.S. jurisdictions’ death penalty systems and preliminarily
determine the extent to which they achieve fairness and provide due process. In addition
to the Arizona assessment, the Project has released state assessments of Alabama and
Georgia and is conducting state assessments and releasing reports in, at a minimum,
Florida, Indiana, Ohio, Pennsylvania, Tennessee, and Virginia. The assessments are not
designed to replace the comprehensive state-funded studies necessary in capital
jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies. This assessment of Arizona is the third in this series.
These assessments examine the above-mentioned jurisdictions’ death penalty systems,
using as a benchmark the protocols set out in the ABA Section of Individual Rights and
Responsibilities’ publication, Death without Justice: A Guide for Examining the
Administration of the Death Penalty in the United States (the Protocols). While the
Protocols are not intended to cover exhaustively all aspects of the death penalty, they do
cover seven key aspects of death penalty administration, including defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus,
clemency proceedings, jury instructions, an independent judiciary, the treatment of racial
and ethnic minorities, and mental retardation and mental illness. Additionally, the
Project includes for review five new areas associated with death penalty administration,
1

including the preservation and testing of DNA evidence, identification and interrogation
procedures, crime laboratories and medical examiners, prosecutors, and the direct appeal
process.
Each state’s assessment has been or is being conducted by a state-based Assessment
Team, which is comprised of or has access to current or former judges, state legislators,
current or former prosecutors and defense attorneys, active state bar association leaders,
law school professors, and anyone else whom the Project felt was necessary. Team
members are not required to support or oppose the death penalty or a moratorium on
executions.
The state assessment teams are responsible for collecting and analyzing various laws,
rules, procedures, standards, and guidelines relating to the administration of the death
penalty. In an effort to guide the teams’ research, the Project created an Assessment
Guide that detailed the data to be collected. The Assessment Guide includes sections on
the following: (1) death-row demographics, DNA testing, and the location, testing, and
preservation of biological evidence; (2) evolution of the state death penalty statute; (3)
law enforcement tools and techniques; (4) crime laboratories and medical examiners; (5)
prosecutors; (6) defense services during trial, appeal, and state post-conviction
proceedings; (7) direct appeal and the unitary appeal process; (8) state post-conviction
relief proceedings; (9) clemency; (10) jury instructions; (11) judicial independence; (12)
the treatment of racial and ethnic minorities; and (13) mental retardation and mental
illness.
The assessment findings provide information about how state death penalty systems are
functioning in design and practice and are intended to serve as the bases from which
states can launch comprehensive self-examinations. Because capital punishment is the
law of the land in each of the assessment states and because the ABA has no position on
the death penalty per se, the assessment teams focused exclusively on capital punishment
laws and processes and did not consider whether states, as a matter of morality,
philosophy, or penological theory, should have the death penalty. Moreover, the Project
and the Assessment Team have attempted to note as accurately as possible information
relevant to the Arizona death penalty. The Project would appreciate notification of any
errors or omissions in this report so that they may be corrected in any future reprints.
Despite the diversity of backgrounds and perspectives among the members of the Arizona
Death Penalty Assessment Team, and although some members disagree with particular
recommendations contained in the assessment report, the team believes that the body of
recommendations as a whole would, if implemented, significantly improve Arizona’s
capital punishment system.

2

MEMBERS OF THE ARIZONA DEATH PENALTY ASSESSMENT TEAM
Chair, Sigmund “Zig” Popko
Professor Popko is currently a Legal Writing Professor at the Sandra Day O’Connor
College of Law at Arizona State University. Prior to joining the faculty in October 2001,
Professor Popko served as an Assistant Federal Public Defender for the District of
Arizona from 1994 to 2001. From May to October 2000, Professor Popko served a
temporary detail as a visiting Assistant Federal Public Defender to the General Counsel
of the United States Sentencing Commission. Before entering public service, Professor
Popko was an associate at the Phoenix law firm of Meyer, Hendricks, Victor, Osborn &
Maledon. He also clerked for the Honorable Stanley G. Feldman, Vice Chief Justice for
the Arizona Supreme Court from 1988 to 1989. Prior to his clerkship, Professor Popko
worked at a criminal defense firm in Tucson, Arizona. Professor Popko is currently a
member of the Board of Governors of Arizona Attorneys for Criminal Justice (AACJ)
and serves as the Editor of the AACJ’s quarterly publication, The Defender. Professor
Popko also sits as a pro tem judge in the Tempe Municipal Court. Professor Popko
received his B.A. magna cum laude from the University of Arizona and his J.D. summa
cum laude from the University of Arizona College of Law.
Peg Bortner
Dr. Bortner is the Director of the Center for Urban Inquiry (CUI) at the Arizona State
University. Her scholarship focuses on critical social theory, research methodologies,
and youth and justice. Dr. Bortner is the author of Youth in Prison: We the People of
Unit Four (with Linda M. Williams, 1997), Delinquency and Justice: An Age of Crisis
(1988), and Inside a Juvenile Court: The Tarnished Idea of Individualized Justice (1982).
She served as a member of the Arizona Capital Case Commission and chaired the
data/research subcommittee. Professor Bortner has been a member of the faculty of
Arizona State University for twenty-five years—receiving numerous awards including
the Alumni Association Award for Service, the Burlington Teaching Award, the College
of Public Programs Outstanding Achievement Award for Teaching, and the ASU Award
for Excellence in Teaching and Community Service. Dr. Bortner received her Ph.D from
Washington University in St. Louis, Missouri
Kent E. Cattani
Mr. Cattani is Chief Counsel of the Capital Litigation Section at the Arizona Attorney
General's Office. He also serves on the Attorney General's Opinion Review Committee
and the Attorney General's DNA Taskforce. Additionally, he is a member of the Board
of Directors of the National Association of Government Attorneys in Capital Litigation.
Kent has co-authored an article on the interplay between the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA) and indigent representation in capital
cases, and he has provided testimony to United States Senate and House of
Representatives subcommittees regarding federal habeas and capital litigation issues.
Kent obtained a law degree from the University of California at Berkeley in 1986, and
has worked at the Attorney General's Office since 1991. In 1997, he became a Unit
Chief/Supervising Attorney, and in January 2000, he was appointed to his current
position. In 2002, he received the Attorney General's Statewide Impact Award for his
work with the Attorney General's Capital Case Commission.
3

Jonodev O. Chaudhuri
Mr. Chaudhuri recently formed the Chaudhuri Law Office, PLLC, in Tempe, Arizona and
serves as Associate Justice on the Yavapai-Apache Nation Court of Appeals. From 2001
to 2006, Mr. Chaudhuri practiced in the Phoenix office of Snell & Wilmer L.L.P.,
focusing on Indian law, business and finance, and commercial litigation. Prior to
entering private practice, he served as Judicial Clerk to Arizona Court of Appeals Judges
Noel Fidel and James M. Ackerman. Mr. Chaudhuri is the State Bar representative to the
State, Tribal, and Federal Court Forum and has clerked for various courts and offices in
all three court systems, including the Federal Public Defender’s Office in Phoenix. Mr.
Chaudhuri is the immediate past Chair of the State Bar of Arizona Indian Law Section
Executive Council and also serves on various community boards and committees,
including the Phoenix Indian Center Board. Mr. Chaudhuri has also served as Adjunct
Professor at Phoenix College, where he taught Indian Gaming, Practice Court, and
Federal, State and Tribal Courts. Mr. Chaudhuri is a member of the Muscogee (Creek)
Nation of Oklahoma, and is also East Indian (Bengali). Mr. Chaudhuri graduated
from Dartmouth College and received his law degree from Cornell Law School.
Larry A. Hammond
Mr. Hammond is a Partner at the Phoenix law firm of Osborn Maledon, P.A. Prior to
entering private practice, Mr. Hammond worked at the United States Department of
Justice as an Assistant Special Prosecutor to the Watergate Special Prosecution Task
Force and as Deputy Assistant Attorney General for the Office of Legal Counsel. Mr.
Hammond clerked on the United States Supreme Court for Justice Hugo L. Black in 1971
and for Justice Lewis F. Powell from 1971 to 1973. He also clerked for the Honorable
Carl McGowan of the United States Court of Appeals for the District of Columbia Circuit
from 1970 to 1971. Mr. Hammond is President of the Arizona Capital Representation
Project and the American Judicature Society. He has authored numerous articles on
criminal justice and judicial reform. Mr. Hammond also has received numerous awards
and professional recognitions including the Arizona State Bar Foundation Walter E.
Craig Award for Community Service, the Distinguished Honorary Alumnus Award from
the University of Arizona Law School and Civil Libertarian of the Year in 1993 and 2000
from the Arizona Civil Liberties Union. Mr. Hammond received his B.A. from the
University of Texas and his J.D. from the University of Texas Law School, where he was
Editor-in-Chief of the Texas Law Review and was elected to the Order of the Coif.
Jose de Jesus Rivera
Mr. Rivera is a Partner at the Phoenix office of Haralson, Miller, Pitt, Feldman &
McAnally, P.L.C., where his practice focuses on international, criminal, personal injury,
and election law. Prior to joining Haralson, Miller, Mr. Rivera was appointed United
States Attorney for the District of Arizona by President Bill Clinton. Mr. Rivera was the
first Hispanic to serve as U.S. Attorney for the District of Arizona and the highest ranked
Hispanic within the Department of Justice. In this capacity, Mr. Rivera was the chief
federal prosecutor and law enforcement officer in the State of Arizona, focusing on law
enforcement coordination between local, national, and international authorities, as well as
community education issues including borders, immigration, Native American issues,
international drug trafficking, alien smuggling, and gun and domestic violence. While
U.S. Attorney, Mr. Rivera served on the Attorney General’s Advisory Committee and
4

chaired the Attorney General’s Subcommittee on Northern and Southern Borders. Mr.
Rivera is a graduate of the Arizona State University College of Law.
Thomas A. Zlaket
Justice Zlaket is a former Justice of the Arizona Supreme Court. He was appointed
Associate Justice in 1992, and served on the court until 2002. During his tenure on the
court, he served a five-year term as Chief Justice from 1997 to 2002. After his service on
the Arizona Supreme Court, Justice Zlaket returned to private practice and is currently a
solo practitioner in Tucson, Arizona. Justice Zlaket received his undergraduate degree
from the University of Notre Dame and his L.L.B. from the University of Arizona, where
he was Editor-in-Chief of the Arizona Law Review. He received an L.L.M. in 2001 from
the University of Virginia. In May of 2002, Justice Zlaket was awarded an honorary
degree of Doctor of Laws from the University of Arizona.

5

Law Student Researchers
Savannah Luisa Castro
Michelle Grashel
Tanya Imming
Nora Nunez
April Olson
Melissa Schaffer
Faisal Ullah
Katherine Winder

Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University
Sandra Day O’Connor College of Law at
Arizona State University

6

CHAPTER ONE
AN OVERVIEW OF ARIZONA’S DEATH PENALTY SYSTEM
I. DEMOGRAPHICS OF ARIZONA’S DEATH ROW
A. Historical Data
After Furman v. Georgia 4 effectively abolished the death penalty in Arizona in 1972, the
Arizona legislature enacted section 13-454 of the Arizona Revised Statutes (A.R.S.),
outlining a new procedure by which the State could seek to impose the death penalty. 5
Following a nearly thirty year hiatus, that the State of Arizona resumed executions of
death-row inmates in 1992. 6
1. First-Degree Murder Indictments and Death Sentences from 1995 through
1999
Of those cases from 1995 through 1999 in which the State of Arizona provided notice of
its intent to seek the death penalty, 11.2% of capital defendants received a sentence of
death, 24.3% received a sentence of life with the possibility of parole, 31.5% received a
sentence of natural life, 32.6% received a prison term of years, and 0.4% received
probation. 7
Between 1995 and 1999, the majority of first-degree murder indictments and death
sentences in Arizona stemmed from proceedings in Maricopa and Pima Counties, which
accounted for 837 of the 971 first-degree murder indictments in Arizona and twenty-four
of the thirty-one death sentences. 8
a. The Age and Sex of Individuals Indicted for First-Degree Murder and
Sentenced to Death

4

408 U.S. 238 (1972) (finding the imposition of the death penalty as practiced violated the Eighth and
Fourteenth Amendments of the U.S. Constitution).
5
See 1973 Ariz. Sess. Laws 138, §5; Office of the Attorney General, Capital Case Commission Final
Report, at 3 (Dec. 2002). Specifically, the new statute called for a separate sentencing hearing to be
conducted before a judge and for the finding of at least one of six aggravating circumstances before the
judge could decide to impose a sentence of death. See Office of the Attorney General, Capital Case
Commission Final Report, at 3 (Dec. 2002).
6
Ariz.
Dep’t
of
Corr.,
Arizona
Death
Penalty
History,
at
http://www.azcorrections.gov/DeathRow/DeathRowGeneral.asp?topic=DeathPenaltyHistory (last visited
May 22, 2006).
7
Arizona First-degree Murder Cases Summary of 1995-1999 Indictments: Data Set II Research Report
to Arizona Capital Case Commission, at 9 (June 2002). The individuals in these cases were convicted of
first-degree murder or a lesser offense. Id. Although 298 individuals had been provided notice of the
State’s intent to seek the death penalty, twenty-one of the individuals had sentences pending and one was
with incomplete data. Id.
8
Id. at 30. Maricopa County accounted for 524 of the indictments and Pima for 313 of the indictments,
while Maricopa County accounted for thirteen death sentences and Pima for eleven. Id.

7

From 1995 to 1999, 872 out of the 971 individuals indicted for first-degree murder in
Arizona were male. 9 Of the 872 indictments rendered, thirty resulted in a sentence of
death. 10 The remaining ninety-nine individuals indicted for first-degree murder were
female; of those, only a single female received a death sentence. 11
Defendants indicted for first-degree murder in Arizona ranged in age, from younger than
seventeen to older than sixty-six years of age. 12 However, defendants between the ages
of twenty to twenty-five comprised the highest percentage (30.2%) of individuals
indicted for first first-degree murder. 13 Similarly, defendants between the ages of twenty
and twenty-five received the greatest percentage (32.3%) of death sentences. 14
b. The Race of Defendants Indicted for First-Degree Murder and Sentenced
to Death and Their Victims
During the period of 1995 through 1999, twenty death sentences resulted from 403 firstdegree murder indictments involving a white 15 defendant. 16 Five death sentences
resulted from 347 first-degree murder indictments involving a Hispanic defendant. 17 Of
the 166 blacks 18 indicted for first-degree murder, four received the death penalty, and of
the twenty-six Native Americans 19 indicted for first-degree murder, only one received the
death penalty. 20 Likewise, only one of the eight Asians21 indicted for first-degree murder
received a death sentence. 22
At the same time, the percentage of indictments resulting in death sentences for cases in
which both the defendant and the victim were white was nearly eight times higher than
those cases in which both the defendant and the victim were minorities. 23 The percentage
of indictments resulting in death sentences for cases comprised of a minority defendant
and a White victim was five times higher than those cases comprised of a white
defendant and minority victim. 24 Prosecutors statewide also opted to seek the death
penalty less frequently when the homicide victim was a minority and more frequently
when the victim was white. 25 Judges, likewise, imposed the death penalty less frequently
9

Id.
Id.
11
Id.
12
Id. at 31. Note that the ages of fourteen individuals were unknown. Id.
13
Id.
14
Id. at 33.
15
Id. at 34. We have employed the term “White” although the Report uses the term “White/Anglo.”
16
Id. at 34. The race/ethnicity of nineteen individuals indicted for first-degree murder was unknown. Id.
17
Id. We have employed the term “Hispanic” in place of “Hispanic/Mexican American” as noted in the
Report.
18
We have employed the term “Black” in place of “Black/African American” as noted in the Report.
19
Instead of “American Indian/Native American,” we have used the term “Native American.”
20
Id.
21
In place of “Asian/Asian American,” we have used the term “Asian.”
22
Id.
23
Id. at 15. In Arizona, where a White defendant was indicted for killing a White individual, the
percentage of indictments resulting in death sentences was 9.1%. Whereas, where a minority was indicted
for killing another minority, the percentage of indictments resulting in death sentences was 1.2%. Id.
24
Id. (noting that the percentage of indictments resulting in death sentences for minority defendant-White
victim cases was 10.3%, while the percentage for White defendant-minority victim cases was 2.0%).
25
Id.
10

8

when the homicide victim was a minority and more frequently when the homicide victim
was white. 26 Only one of the 316 first-degree murder indictments in which the victim
was Hispanic led to a death sentence. 27
2. Death Sentences from 1974 to July 1, 2000
From 1974 through July 1, 2000, Arizona imposed 230 death sentences. 28 Forty-seven
point four percent of these cases originated in Maricopa County, 27.8% in Pima County,
6.1% in Mohave County, 4.8% in Yavapi County, and 4.8% in Yuma County. 29
However, 141 of these 230 cases in which the death penalty had been imposed resulted in
a remand, reversal, and/or modification at some point in the appellate proceedings. 30
Fifty-one point one percent of these remands, reversals, and modifications resulted from
proceedings in Maricopa County, 27.7% in Pima County, and 6.4% in Mohave County. 31
Fifty-five of the remands, reversals, and modifications related to the defendant’s
conviction while eighty-six of them related to the defendant’s sentence. 32
a. The Race, Sex, and Age of Defendants Sentenced to Death and Their
Victims
Approximately 69% of the 230 individuals sentenced to death in Arizona from 1974
through July 1, 2000 were white, 15.7% were Hispanic, 11.3% were black, 1.7% were
Native American, and 2.2% were biracial. 33 Seventy-nine point eight percent of their
victims were white, 11.8% Hispanic, 3.9% black, 3.5% Asian, and 0.9% Native
American. 34 Only two of the defendants sentenced to death during this period were
female, while nearly half (49.2%) of all victims were female. 35
One hundred twenty-two of the capital defendants who received a sentence of death were
between the ages of twenty-six and forty, eighty-one were between the ages of eighteen
and twenty-five, twenty-two were between the ages of forty-one and sixty-five, four were
under the age of eighteen, and only one was sixty-six years old or older. 36
b. Education and Employment Status of Defendants Sentenced to Death
26

Id. (denoting the percentage of cases in which the judge decided to impose the death penalty on the
basis of the defendant and victim’s race/ethnicity).
27
Id. at 16; see also Office of the Attorney General, Capital Case Commission Final Report, at 29 (Dec.
2002).
28
See Summary of Death Sentence Process: Data Set I Research Report to Arizona Capital Case
Commission, at v, 1 (March 2001).
29
Id. at 4. These counties represent the five counties with the greatest percentage of death sentences. Id.
30
See id.
31
Id. These counties represent the three counties with the greatest percentage of remands, reversals,
and/or modifications. Id.
32
Id at 12.
33
Id. at 37.
34
Id. There appears to be a discrepancy between the percentages of the victims’ race/ethnicity within the
Research Report. See id. at 36. This discrepancy appears to be a result of the total number of victims
accounted for in the analysis of the data. See id. at 36, 37. (using a victim pool of 219 in comparison to a
victim pool of 228).
35
Id.
36
Id.

9

At least fifty-three of the defendants sentenced to death in Arizona from 1974 through
July 1, 2000 attained their GED; forty-two completed the tenth or eleventh grade; thirtynine completed the seventh, eight, or ninth grade; eight completed the third, forth, fifth,
or sixth grade; and twenty-nine graduated high school. 37 Only four individuals were
known to have attained their bachelor’s degree, although thirty-one had enrolled or
completed some sort of post-high school education, such as a community college or
university. 38 The education level of twenty-four individuals sentenced to death was
unknown. 39
Over half of those defendants sentenced to death (146 individuals) were unemployed. 40
Sixty-five individuals were employed on some sort of basis. 41 Another six were among
students, retired, or disabled. 42 The employment status of thirteen individuals sentenced
to death was unknown. 43
c. Citizenship and Language of Defendants Sentenced to Death
Two hundred four of the defendants sentenced to death possessed United States
citizenship. 44 Four possessed Mexican citizenship and another four possessed German
citizenship. 45 One individual sentenced to death held Honduran citizenship. 46 The
nationalities of seventeen defendants who received the death penalty were unknown. 47
Additionally, two hundred ten defendants sentenced to death specified English as their
first language, followed by Spanish, with seven defendants, and German, with four
defendants. 48 The native language of nine individual sentenced to death was unknown. 49
d. Trial Composites for Defendants Sentenced to Death
i. Aggravating and Mitigating Circumstances
From 1974 through July 1, 2000, of those defendants sentenced to death, judges found
two aggravating circumstances in 35.7% of the cases, one aggravating circumstance in
25.2% of the cases, three in another 25.2% of the cases, four in 10.4%, and five
aggravating circumstances in 2.6% of the cases. 50 In no case was more than five
37

Id. at 39.
Id.
39
Id.
40
Id.
41
Id.
42
Id.
43
Id.
44
Id.
45
Id.
46
Id.
47
Id. This number includes two defendants who were cited as a resident alien and illegal alien in the
Report.
48
Id.
49
Id.
50
Id. at 7. Note that data is missing from two cases for this time period.
38

10

aggravating circumstances found. 51 The aggravating circumstance most frequently
established was that the offense was committed in an especially heinous, cruel or
depraved manner; this aggravator was found in 76.5% of death penalty cases. 52
Sentencing judges failed to find any statutory mitigating circumstances in 81.7% of those
cases in which a defendant was sentenced to death, found one in 16.5% of cases, and two
in 0.9% of cases. 53 The most common mitigating circumstance found to exist by trial
court judges was the defendant’s age, having been found in 10.9% of death penalty
cases. 54
ii. Defense Attorneys
On average, only 3.2% of capital defendants were represented by a privately-obtained
attorney through the trial, direct appeal, post-conviction relief, and/or habeas
proceedings. 55 The remaining 96.8% of Arizona’s capital defendants were either
represented by the public defender or a court-appointed attorney. 56
3. Executions and Exonerations
Since 1992, Arizona has executed twenty-two individuals. 57 Of these, seventeen were
white, four were Hispanic, and one was Native American. 58 Twenty of the twenty-two
individuals were sentenced to death for the murder of a white victim. 59 The State of
Arizona has yet to execute any women; all individuals executed have been male, three of
whom were foreign nationals. 60
According to the Death Penalty Information Center, eight death-row inmates have been
exonerated since 1973. 61
B. A Current Profile of Arizona’s Death Row

51

Id.
Id. at 8.
53
Id. at 7. Note that data is missing from two cases for this time period. Judges also failed to find any
non-statutory mitigating factors in 53% of death cases. Id.
54
Id. at 10.
55
Id. at 26.
56
Id.
57
See
Ariz.
Dep’t
of
Corr.,
Inmates
Executed
since
1992,
at
http://www.azcorrections.gov/DeathRow/ExecutedGallery.htm (last visited May 22, 2006) (using the terms
“Caucasian” and “American Indian”).
58
See id.
59
See id. (including the case of Jose Jesus Ceja whose victims included a white individual and Hispanic
individual).
60
Id.; see also Death Penalty Information Center, Foreign Nationals, Part II, at
http://www.deathpenaltyinfo.org/article.php?scid=31&did=582#executed (last visited May 23, 2006).
61
See Death Penalty Information Center, Innocence: List of Those Freed From Death Row, at
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110 (last visited May 22, 2006). The eight freed
individuals are: Jonathan Treadway, Jimmy Lee Mathers, James Robison, Robert Charles Cruz, David
Wayne Grannis, Christopher McCrimmon, Ray Krone, and Lemuel Prion. Id.
52

11

As of January 31, 2006, there were 108 inmates on Arizona’s death row. 62 According to
the Arizona Department of Corrections, seventy-five of them are white, fourteen
Hispanic, eleven black, and four Native American. 63 One of the death-row inmates is a
Mexican citizen, one a German citizen, and one is of other race/national origin. 64 Only
two of the 108 death-row inmates are female. 65
These 108 death-row inmates represent nine of the fifteen counties in Arizona. 66 Fiftyseven of whom were sentenced to death in Maricopa County and twenty-five of whom
were sentenced to death in Pima County. 67

62

Ariz.
Dep’t
of
Corr.,
Death
Row
Information,
at
http://www.azcorrections.gov/DeathRow/DeathRowMain.asp#number (last visited May 22, 2006).
63
Id.
64
Id.
65
Id.
66
See
Ariz.
Dep’t
of
Corr.,
County
Breakdown,
available
at
http://www.azcorrections.gov/DeathRow/DeathRowGeneral.asp?topic=county (last visited May 22, 2006).
67
Id. The following Arizona counties also have imposed the death penalty on individuals who are
currently awaiting execution on death row: Cochise (2 inmates), Coconino (2 inmates), La Paz (1 inmate),
Mohave (8 inmates), Pinal (4 inmates), Yavapai (5 inmates), and Yuma (4 inmates). See id.

12

II. THE STATUTORY EVOLUTION OF ARIZONA’S DEATH PENALTY SCHEME
A. Arizona’s Post-Furman Death Penalty Scheme
In the wake of the United States Supreme Court’s decision in Furman v. Georgia 68
finding the imposition of the death penalty as practiced violated the Eighth and
Fourteenth Amendments of the United States Constitution, the Arizona Legislature
passed a new death penalty law in 1973. 69 The new law affected three Arizona statutes:
the murder statute, section 13-452 of the Arizona Revised Statutes (A.R.S) was amended;
the first-degree murder penalty statute, section 13-453 of the Arizona Revised Statutes
was amended; and section 13-454 was replaced with a new statute, “Proceedings for
determining sentence upon the finding or admitting or guilt in cases of murder in the first
degree.” 70
The new murder statute defined first-degree murder as “a murder which is perpetrated by
means of poison or lying in wait, torture, or by any other kind of wilful, deliberate and
premeditated killing, or which is committed in avoiding or preventing lawful arrest or
effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate,
arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual
molestation of a child under the age of thirteen years.” 71
Pursuant to the new death penalty statutes, upon conviction for first-degree murder, the
defendant would be sentenced to death or life imprisonment without parole for twentyfive years. 72 Although the sentencing phase was held separately from the guilt/innocence
phase of the death penalty trial, 73 it was conducted before the same judge that presided
over the guilt/innocence phase. No jury was to be present during the sentencing
proceeding. 74
During the sentencing hearing, the court would disclose to the defendant all material
contained in any pre-sentence report. 75 In addition, the State and defendant were
authorized to present any evidence that the court deemed relevant to any of the statutory
aggravating and mitigating circumstances. 76 The statutory aggravating circumstances
were:

68

Furman v. Georgia, 408 U.S. 238 (1972).
1973 Ariz. Sess. Laws 138, § 5.
70
1973 Ariz. Sess. Laws 138, §§ 1, 2, 4, 5.
71
1973 Ariz. Sess. Laws 138, § 1.
72
1973 Ariz. Sess. Laws 138, § 2.
73
1973 Ariz. Sess. Laws 138, § 5.
74
Id.
75
1973 Ariz. Sess. Laws 138, § 5. The court could withhold materials for the protection of human life,
but any presentence information withheld from the defendant could not be considered in determining the
existence or nonexistence of aggravating or mitigating circumstances.
76
Id. Admissibility of information relevant to aggravating circumstances was governed by the rules
governing the admission of evidence at criminal trials. These rules did not govern admissibility of
information relevant to mitigating circumstances, however.
69

13

(1)

(2)
(3)

(4)
(5)
(6)

The defendant has been convicted of another offense in the United States
for which under Arizona law a sentence of life imprisonment or death was
imposable;
The defendant was previously convicted of a felony in the United States
involving the use or threat of violence on another person;
In the commission of the offense the defendant knowingly created a grave
risk of death to another person or persons in addition to the victim of the
offense;
The defendant procured the commission of the offense by payment, or
promise of payment, of anything of pecuniary value;
The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value; and
The defendant committed the offense in an especially heinous, cruel, or
depraved manner. 77

The statutory mitigating factors were:
(1)

(2)
(3)

(4)

The defendant’s capacity to appreciate the wrongfulness of his/her
conduct or to conform his/her conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a defense to
prosecution;
The defendant was under unusual and substantial duress, although not
such as to constitute a defense to prosecution;
The defendant was a principal in the offense, which was committed by
another, but his/her participation was relatively minor, although not so
minor as to constitute a defense to prosecution;
The defendant could not reasonably have foreseen that his/her conduct in
the course of the commission of the offense for which s/he was convicted
would cause, or would create a grave risk of causing, death to another
person. 78

Under this scheme, the prosecution had the burden of proving the existence of any
aggravating factors and the defense had the burden of proving the existence of any
mitigating factors. 79
After hearing the evidence presented, the court was required to impose either a sentence
of death or life imprisonment without parole until the defendant had served twenty-five
years, taking into account the enumerated aggravating and mitigating circumstances. A
death sentence was required when the court found one or more aggravating circumstances
and no mitigating circumstances that were sufficiently substantial to call for leniency. 80
The court was required to return a special verdict setting forth its findings as to the
existence or nonexistence of each statutory aggravating and mitigating circumstance. 81

77
78
79
80
81

1973 Ariz. Sess. Laws 138, § 5.
1973 Ariz. Sess. Laws 138, § 5.
1973 Ariz. Sess. Laws 138, § 5.
1973 Ariz. Sess. Laws 138, § 5.
1973 Ariz. Sess. Laws 138, § 5.

14

B. Amendments to Arizona’s First-Degree Murder Statute, Section 13-452 of the
A.R.S., and the Death Penalty Statute, Section 13-454 of the A.R.S.
Between 1973 and 2005, the Arizona Legislature amended its death penalty scheme,
including Arizona’s first-degree murder and death penalty statutes, on several occasions.
In addition to shifting the authority to impose a death sentence from judge to jury, the
State of Arizona has provided significantly more detail as to process in capital cases, has
exempted mentally retarded offenders from the death penalty, provided for the
involvement of victim’s family members, and expanded the number of aggravating
circumstances from six to fourteen. 82
1. Changes to Arizona’s First-Degree Murder Statute, Sections 13-452, 13-453
and 13-1105 of the A.R.S.
In 1977, the Arizona legislature repealed and replaced the earlier murder and first-degree
murder penalty statutes, sections 13-452 and 13-453, with section 13-1105. 83 The new
statute defined first-degree murder as:
(1)
(2)

S/he, knowing that his/her conduct will cause death or serious physical
injury, causes the death of another with premeditation; or
Acting alone or with one or more other people commits or attempts to
commit “first or second-degree rape, sexual assault, child molestation,
lewd and lascivious acts committed with force, the infamous crime against
nature committed with force, narcotics offenses, kidnapping, burglary,
arson of an occupied structure, robbery, escape, aggravated assault, and in
the cause [sic] of and in furtherance of such offense or immediate flight
from such offense, such person or another person causes the death of any
person.” 84

The punishment for first-degree murder was designated as life imprisonment or death. 85
The legislature made several amendments to the first-degree murder statute in 1978
including (1) limiting murder to situations where the person knew his/her conduct would
cause death, instead of allowing first-degree murder charges where the person only knew
his/her conduct would cause serious physical injury; and (2) removing murder during the
commission of or attempted commission of first and second-degree rape, lewd and
lascivious acts committed with force, the infamous crime against nature committed with
force, and aggravated assault from the definition of first-degree murder. 86

82

ARIZ. REV. STAT. § 13-703(F) (2005).
Sections 452 and 453 repealed by Act of Oct. 1, 1977, ch. 142, § 15; section 1105 created by Act
of Oct. 1, 1977, ch. 142, § 60.
84
Act of Oct. 1, 1977, ch. 142, § 60.
85
Id.
86
Act of Oct. 1, 1978, ch. 201, § 127. The 1978 amendments also fixed a typo in the second part of the
first-degree murder definition, changing the word, “cause” to “course” (“in the cause of and in furtherance
of such offense …” changed to “in the course of and in furtherance of such offense …” Act of Oct. 1,
1978, ch. 201, § 127.
83

15

Two years later, the legislature added an intent allowance, so that the statute read: “A
person commits first degree murder if (1) intending or knowing that his conduct will
cause death, such person causes the death of another with premeditation[.]” 87
Between 1983 and 1993, the legislature added several new crimes that could render an
individual eligible for the charge of first-degree murder. 88 Causing the death of any
person in the course of and in furtherance of, or in immediate flight from, sexual conduct
with a minor was added in 1983; 89 causing the death of a person in the course of and in
furtherance of, or in immediate flight from, child abuse was added in 1986; 90 and murder
in course of an in furtherance of, or in immediate flight from, marijuana offenses was
added in 1993. 91 In 1993, the legislature also amended the provision allowing for a firstdegree murder charge for murder in the commission of narcotics offenses to require that
the narcotics offenses must “equal or exceed the statutory threshold amount for each
offense or combination of offenses, involving or using minors in drug offenses.” 92
The following year, the legislature removed the requirement that to be eligible for a firstdegree murder charge, murder committed during an arson must have been an arson of an
occupied dwelling. 93 Also in 1994, the legislature added murder during the “unlawful
flight from a pursuing law enforcement vehicle” to the list of eligible crimes. 94
In addition to making slight stylistic changes in 1996, the legislature added: “Intending or
knowing that the person’s conduct will cause death to a law enforcement officer, the
person causes the death of a law enforcement officer who is in the line of duty” as a
crime rendering an individual eligible to be charged with first-degree murder. 95
In 2002, the legislature added premeditated murder in the course of terrorism to the list of
crimes constituting first-degree murder.96 Most recently, in 2005, the legislature
amended the statute to include within the definition of first-degree murder the death of an
unborn child “at any stage of development” in the womb. 97
Today, the statue reads:
(1)

Intending or knowing that the person’s conduct will cause death, the
person causes the death of another person, including an unborn child, with
premeditation or, as a result of causing the death of another person with
premeditation, causes the death of an unborn child;

87

Act of Apr. 23, 1980, ch. 229, § 14 (emphasis added to new language).
The legislature made additional, non-substantive changes in 1981, 1987, and 2000. Act of Sept. 1,
1981, ch. 264, § 5; Act of 1987, ch. 307, § 7; Act of 2000, ch. 50, § 2.
89
Act of 1983, ch. 202, § 4.
90
Act of May 16, 1985, ch. 364, § 13.
91
Act of Jan. 1, 1994, ch. 255, § 20.
92
Id.
93
Act of 1994, ch. 150, § 1.
94
Act of Apr. 19, 1994, ch. 200, § 10.
95
Act of 1996, ch. 343, § 2.
96
Act of May 15, 2002, ch. 219, § 8.
97
Act of Apr. 25, 2005, ch. 188, § 7.
88

16

(2)

Acting alone or with one or more other persons the person commits or
attempts to commit sexual conduct with a minor under section 13-1405,
sexual assault under section 13-1406, molestation of a child under section
13-1410, terrorism under section 13-2308.01, marijuana offenses under
section 13-3405, subsection A, paragraph 4, dangerous drug offenses
under section 13-3407, subsection A, paragraphs 4 and 7, narcotics
offenses under section 13-3408, subsection A, paragraph 7 that equal or
exceed the statutory threshold amount for each offense or combination of
offenses, involving or using minors in drug offenses under section 133409, kidnapping under section 13-1304, burglary under section 13-1506,
13-1507 or 13-1508, arson under section 13-1703 or 13-1704, robbery
under section 13-902, 13-1903 or 13-1904, escape under section 13-2503
or 13-2504, child abuse under section 13-3623, subsection A, paragraph 1,
or unlawful flight from a pursuing law enforcement vehicle under section
28-622.01 and in the course of and in furtherance of the offense or
immediate flight from the offense, the person or another person causes the
death of any person; or

(3)

Intending or knowing that the person’s conduct will cause death to a law
enforcement officer, the person causes the death of a law enforcement
officer who is in the line of duty. 98

2. Changes to Arizona’s Death Penalty Statute: Sections 13-454, 13-902, and 13703 of the A.R.S.
In 1977, the legislature transferred, renumbered, and amended the 1973 death penalty
statute. The changes were predominantly stylistic, renumbering section 13-454 as 13902, 99 but they did reword the third mitigating circumstance to read: “The defendant was
legally accountable for the conduct of another . . . , but his participation was relatively
minor, although not so minor as to constitute a defense to prosecution.” 100 The
amendment also added a fifth mitigating circumstance: “the defendant’s age.” 101
The legislature again revised the death penalty statute in 1978, renumbering the statute as
section 13-703 102 and including a seventh aggravating circumstance: “The defendant
committed the offense while in the custody of the department of corrections, a law
enforcement agency or county or city jail.” 103

98

ARIZ. REV. STAT. § 13-1105(A) (2005). A person, however, will not be prosecuted for an offense
under the statute if (1) “the person was performing an abortion for which the consent of the pregnant
woman, or a person authorized by law to act on the pregnant woman’s behalf, has been obtained or for
which the consent was implied or authorized by law,” (2) “the person was performing medical treatment on
the pregnant woman or the pregnant woman’s unborn child,” or (3) “the person was the unborn child’s
mother.” ARIZ. REV. STAT. § 13-1105(C) (2005).
99
1977 Ariz. Sess. Laws 142 § 58.
100
Id.
101
Id.
102
Ariz. Sess. Laws 201, § 104.
103
Ariz. Sess. Laws 215, § 2.

17

In 1978, as a result of the United States Supreme Court’s decisions in Lockett v. Ohio 104
and Bell v. Ohio 105 holding death penalty statutes restricting the right of defendants to
show mitigating evidence unconstitutional, the Arizona Supreme Court found portions of
the State’s death penalty statute unconstitutional in State v. Watson, “insofar as it limits
the right of the defendant to show additional mitigating circumstances.” 106 After the
Court’s decision in Watson, all death-row inmates were granted new sentencing hearings
to allow full presentation of mitigating evidence.
The legislature responded to Watson by amending the statute in 1979 to read that
“mitigating circumstances shall be any factors proffered by the defendant or the [S]tate
which are relevant in determining whether to impose a sentence less than death, including
any aspect of the defendant’s character, propensities or record and any of the
circumstances of the offense, including but limited to” the enumerated list of mitigating
factors previously described.” 107
In 1982, the legislature added a provision to the death penalty statute expressly
authorizing that the victim’s immediate family be allowed to express their opinion
regarding the crime and the defendant at the sentencing hearing. The court was then
obligated to consider the immediate family’s opinion during the defendant’s
sentencing. 108
The legislature added an eighth aggravating circumstance in 1984: “The defendant has
been convicted of one or more other homicides. . . which were committed during the
commission of the offense.” 109
The following year, the legislature clarified the range of possible sentences for firstdegree murder. If the victim was fifteen or older, the defendant could receive (1) a death
sentence or (2) a life sentence without the possibility of release for twenty-five years. If
the victim was younger than fifteen, the defendant could receive (1) a death sentence or
(2) a life sentence without the possibility of release for thirty-five years. 110 The
legislature also added a ninth aggravating circumstance: “The defendant was an adult at
the time the offense was committed or was tried as an adult and the victim was under
fifteen years of age.” 111
In 1988, the legislature added a tenth aggravating circumstance: “The murdered
individual was an on duty peace officer who was killed in the course of performing
his[/her] official duties and the defendant knew, or should have known, that the victim
was a peace officer.” 112

104
105
106
107
108
109
110
111
112

Lockett v. Ohio, 438 U.S. 586 (1978).
Bell v. Ohio, 438 U.S. 637 (1978).
State v. Watson, 586 P.2d 1253, 1257 (Ariz. 1978).
1979 Ariz. Sess. Laws 1444, § 1.
1982 Ariz. Sess. Laws 325 § 5.
1984 Ariz. Sess. Laws 66 § 1.
1985 Ariz. Sess. Laws 364 § 8.
Id.
1988 Ariz. Sess. Laws 155 § 1.

18

The legislature made a number of changes to the death penalty statute in 1993. Most
notably, the statute was amended to provide for the additional sentencing option of life in
prison without the possibility of parole. 113 Additionally, the statute was changed to
expand upon the requirement that the judge make all sentencing decisions and required
that s/he make all factual determinations required by the death penalty statute and/or the
United States or Arizona Constitutions. 114
The 1993 amendment also made changes to three aggravating circumstances. In the
second aggravating circumstance, the language was changed to read: “The defendant was
previously convicted of a serious offense, whether preparatory or completed.” 115 The
statute defined the term “serious offense” as including the following crimes:
(1)
(2)
(3)
(4)

(5)
(6)
(7)
(8)
(9)
(10)
(11)

First-degree murder;
Second degree murder;
Manslaughter;
Aggravated assault resulting in serious physical injury or committed by
the use, threatened use or exhibition of a deadly weapon or dangerous
instrument;
Sexual assault;
Any dangerous crime against children;
Arson of an occupied structure;
Robbery;
Burglary in the first-degree;
Kidnapping; and
Sexual conduct with a minor under fifteen years of age. 116

The legislature also added language to the seventh aggravating circumstance, to read:
“The defendant committed the offense while in the custody of or on authorized or
unauthorized release from the state department of corrections, a law enforcement agency
or a county or city jail.” 117
Lastly, the legislature added language to the ninth aggravating circumstance, to read:
“The defendant was an adult at the time the offense was committed or was tried as an
adult and the victim was under fifteen years of age or was seventy years of age of
older.” 118
The legislature made a series of changes to the death penalty statute in 1999, in large part
to ensure that victims’ family members were allowed to participate in the trial and
sentencing process. The amendments added language allowing the victim’s family to
submit a written or oral victim impact statement for use in preparing the presentence

113

1993 Ariz. Sess. Laws § 1.
Id.
115
Id. The aggravator previously read: “The defendant was previously convicted of a felony in the United
States involving the use or threat of violence on another person.” ARIZ. REV. STAT. § 13-703(F)(2) (1993).
116
1993 Ariz. Sess. Laws § 1.
117
Id. emphasis added to new language).
118
Id. (emphasis added to new language).
114

19

report. 119 It additionally allowed for the victim’s family to be present and testify at the
sentencing hearing. 120 Today, the court may consider any information provided about the
victim and the impact of the murder on the victim’s family, but not the family’s
recommendation as to sentencing. 121
In 2001, the legislature exempted individuals with mental retardation from the death
penalty. However, mentally retarded offenders were still eligible for life or natural life
imprisonment. 122
On June 24, 2002, in Ring v. Arizona, the United States Supreme Court invalidated
Arizona’s death penalty statute by holding that the Constitution requires that juries, not
judges, determine the facts that precondition a defendant’s eligibility for a death
sentence. 123 Consequently, death sentences imposed after a judge’s finding of
aggravating factors violate a defendant’s Sixth Amendment right to trial by jury. 124
Justice Ginsburg, writing for the majority, explained that “[c]apital defendants, no less
than non-capital defendants . . . are entitled to a jury determination of any fact on which
the legislature conditions an increase in their maximum punishment.” 125 “The right to
trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it
encompassed the factfinding necessary to increase a defendant’s sentence by two years,
but not the factfinding necessary to put him to death. We hold that the Sixth Amendment
applies to both.” 126
Justice Scalia, in a concurring opinion, further explained:
[O]ur people’s traditional belief in the right of trial by jury is in perilous
decline. That decline is bound to be confirmed, and indeed accelerated, by
the repeated spectacle of a man’s going to his death because a judge found
that an aggravating factor existed. We cannot preserve our veneration for
the protection of the jury in criminal cases if we render ourselves callous
to the need for that protection by regularly imposing the death penalty
without it. 127
As a result of the United States Supreme Court’s decision in Ring v. Arizona, the Arizona
legislature made significant changes to the death penalty statute in 2002, and added a new
statute, section 13-703.01. 128 Most importantly, the new and amended statutes changed
Arizona’s capital sentencing scheme to allow for jury sentencing. 129 While juries are
now the default triers of fact, judges may still impose a death sentence upon agreement of

119
120
121
122
123
124
125
126
127
128
129

1999 Ariz. Sess. Laws. 104 § 1.
Id.
Id.
2001 Ariz. Sess. Laws 260 § 1.
Ring v. Arizona, 536 U.S. 584 (2002).
Id.
Id. at 589.
Id. at 609.
Id. at 612 (Scalia, J., concurring).
2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch.1 §§ 2, 3.
2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch. 1 §§ 1, 3.

20

both parties. 130 The statute also provided more detail about Arizona’s death penalty
scheme. For example, prior to a capital trial, the State must file a notice of intent to seek
the death penalty 131 and must provide notice of the aggravating circumstances upon
which it is relying to seek the death penalty. 132
If, at the end of the guilt/innocence phase of the trial, the trier of fact finds the defendant
guilty of first-degree murder, the defendant then proceeds to the sentencing proceeding.
The first phase of this proceeding, the aggravation phase, takes place immediately
following a verdict of guilty. The trier of fact’s sole directive during this phase is to
determine whether the prosecution has proven any of the aggravating circumstances
beyond a reasonable doubt. 133 The State carries the burden of proving aggravating
factors beyond a reasonable doubt. 134 A special finding must be made as to each alleged
aggravating circumstance found unanimously to be present or absent, based on evidence
presented at the guilt/innocence phase and/or the aggravation phase. 135
If the trier of fact is a jury, it must unanimously decide that an aggravating circumstance
has been proven. The jury cannot sentence the defendant to death if it fails to find at least
one aggravating circumstance. 136 If the jury is unable to reach a unanimous verdict as to
the presence of at least one aggravating circumstance, the judge must dismiss the jury and
impanel a new one. If the second sentencing jury is unable to reach a unanimous verdict
as to the presence of one or more aggravating circumstances, the death penalty ceases to
be an available sentencing option. 137
If the trier of fact finds that one or more aggravating circumstance has been proven, the
trier of fact then must decide the defendant’s sentence. 138 The penalty phase of the
sentencing proceeding, designed to determine the appropriate punishment, is held
immediately after the trier of fact finds the existence of at least one aggravating
circumstance. 139
At this phase, the defendant and the State may present any evidence relevant to
determining whether mitigation evidence substantial enough to call for leniency exists.140
The burden of proving mitigation is on the defense, who must prove the existence of any
mitigating circumstances by a preponderance of the evidence. 141 In determining the
appropriate sentence, if the trier of fact is a jury, each juror may consider any mitigating
circumstances s/he believes has been proven; jurors need not unanimously agree on the
existence of individual mitigating circumstances. 142
130
131
132
133
134
135
136
137
138
139
140
141
142

2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch. 1, § 3.
Id.
Id.
Id.
2002 Ariz. Leg. Serv. 5th Sp. Sess. Ch. 1, § 1.
2002 Ariz. Leg. Serv. 5th Sp. Sess. Ch. 1, § 3.
Id.
Id.
Id.
Id.
Id.
2002 Ariz. Leg. Serv. 5th Sp. Sess. Ch. 1, § 1.
Id.

21

The jury must unanimously agree that a death sentence is appropriate before it may be
imposed. 143 If the jury determines that death is not appropriate, the judge must then
decide between imposing a sentence of life or natural life. 144 If the jury is unable to
reach a verdict, the court must dismiss the jury and impanel a new one. 145 If the second
jury is unable to reach a unanimous verdict, the judge will sentence the defendant to life
or natural life. 146
The 2003 amendment reiterated the need for the State to file a notice of intent to seek the
death penalty in capital cases,147 and expanded upon two aggravating circumstances. The
second aggravating circumstance was amended to read: “The defendant has been or was
previously convicted of as serious offense, whether preparatory or completed.
Convictions for serious offenses committed on the same occasion as the homicide, or not
committed on the same occasion but consolidated for trial with the homicide, shall be
treated as a serious offense under this paragraph.” 148 The seventh aggravating
circumstance was amended to read: “The defendant committed the offense while (a) in
the custody of or on authorized or unauthorized release from the state department of
corrections, a law enforcement agency or a county or city jail, [or] (b) on probation for a
felony offense.” 149
In 2005, the legislature once again enacted numerous changes to the death penalty
statute. 150 Most significantly, Arizona enlarged the scope of the death penalty by
adopting the following four statutory aggravating circumstances:
(1)

(2)

(3)
(4)

The defendant committed the offense with the intent to promote, further or
assist the objectives of a criminal street grant or criminal syndicate or to
join a criminal street gang or criminal syndicate.
The defendant committed the offense to prevent a person’s cooperation
with an official law enforcement investigation, to prevent a person’s
testimony in a court proceeding, in retaliation for a person’s cooperation
with an official law enforcement investigation or in retaliation for a
person’s testimony in a court proceeding.
The offense was committed in a cold, calculated manner without pretense
of moral or legal justification.151
The defendant used a remote stun gun or an authorized remote stun gun in
the commission of the offense. 152

143

2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch. 1, § 3.
Id.
145
Id.
146
Id.
147
2003 Ariz. Sess. Laws 255 § 1.
148
Id. (emphasis added to new language).
149
Id. (emphasis added to new language). The amendment also makes other non-substantive changes.
See id.
150
2005 Ariz. Sess. Laws 166 § 2; 2005 Ariz. Sess. Laws 188 § 3; 2005 Ariz. Sess. Laws 325 § 2.
151
2005 Ariz. Sess. Laws 325 § 2.
152
2005 Ariz. Sess. Laws 166 § 2.
144

22

The legislature also added language to the ninth aggravating circumstance in order to
allow the imposition of the death penalty when the victim is “an unborn child in the
womb at any stage of its development.” 153
In regards to the second aggravating circumstance, the definition of a “serious offense”
was expanded to include the offenses of burglary in the second degree and terrorism. 154
Additionally, for the “serious offense” of “any dangerous crime against children,” the
legislature added language to include an “unborn child” in the protected class of
victims. 155
The legislature also amended the death penalty statute to provide for a life sentence
without the possibility of release for thirty-five years if the victim is an unborn child. 156
In fact, “for purposes of punishment,” the legislature added language to the death penalty
statute to ensure that an unborn child would be treated as a minor under the age of
twelve. 157
In 2005, the legislature also clarified the point at which factual determinations must be
made in a death penalty trial: “If the defendant bears the burden of proof, the issue shall
be determined in the penalty phase. If the [S]tate bears the burden of proof, the issue
shall be determined in the aggravation phase.” 158
Lastly, Arizona expanded the definition of a victim to encompass “any other person
related to the murdered person by consanguinity or affinity to the second degree.” 159

153
154
155
156
157
158
159

2005 Ariz. Legis. Serv. Ch. 188 § 3.
2005 Ariz. Legis. Serv. Ch. 325 § 2.
2005 Ariz. Legis. Serv. Ch. 188 § 3.
Id.
Id.
2005 Ariz. Legis. Serv. Ch. 325 § 3.
Id.

23

III. PROGRESSION OF AN ARIZONA DEATH PENALTY CASE

Trial and
Direct Appeal

State PostConviction

Federal
Habeas Corpus

U.S. Supreme Court
(Discretionary)

U.S. Supreme Court
(Discretionary)

Arizona Supreme
Court

Arizona Supreme
Court
(Discretionary)

U.S. Court of Appeals
for the
Ninth Circuit

County Circuit
Court
(Trial)

County Circuit Court
(Trial Court)

U.S. District Court
(Habeas Corpus)

24

U.S. Supreme Court
(Discretionary)

A. Pretrial Process
1. Commencement of a Felony Action
In order to prosecute an individual accused of a capital felony, a grand jury 160 must
determine that the evidence justifies an indictment. 161 An indictment is a plain, concise
statement of facts sufficiently definite to inform the defendant of the offense charged, 162
and identifies the statute, rule, regulation, and/or other provision of law that the defendant
is alleged to have violated. 163
Alternatively, a felony action may be commenced by filing a complaint. 164 If a
complaint is made under oath before a magistrate, the magistrate must decide whether
there is probable cause to believe that an offense has been committed by the defendant.
If the magistrate does not find probable cause, s/he will dismiss the complaint. 165 If the
magistrate finds probable cause, s/he then issues an arrest warrant, summons or notice of
a supervening indictment. If the complaint is signed by a prosecutor, the magistrate will
issue a summons to appear or notice of a supervening indictment. 166
In Arizona, a person is eligible for the death penalty only if s/he is found guilty of firstdegree murder. Murder in the first-degree consists of the following enumerated offenses:
(1)

(2)

Intending or knowing that the person’s conduct will cause death, the
person causes the death of another person, including an unborn child, with
premeditation or, as a result of causing the death of another person with
premeditation, causes the death of an unborn child;
Acting either alone or with one or more other persons the person commits
or attempts to commit sexual conduct with a minor, sexual assault,
molestation of a child, terrorism, marijuana offenses, dangerous drug
offenses, narcotics offenses that equal or exceed the statutory threshold
amount for each offense or combination of offenses, involving or using
minors in drug offenses, kidnapping, burglary, arson, robbery, escape,
child abuse, or unlawful flight from a pursuing law enforcement vehicle
and in the course of and in furtherance of the offense or immediate flight
from the offense, the person or another person causes the death of any
person; or

160

A grand jury is composed of not less than twelve nor more than sixteen people. ARIZ. REV. STAT. §
21-101 (2006). An indictment cannot be returned without the concurrence of at least nine grand jurors.
ARIZ. R. CRIM. P. 12.7(a).
161
An indictment is a written statement charging the commission of a public offense, presented to the
court by a grand jury, endorsed “A True Bill,” and signed by the foreman. ARIZ. R. CRIM. P. 13.1(a).
162
ARIZ. R. CRIM. P. 13.2(a)
163
ARIZ. R. CRIM. P. 13.2(b).
164
ARIZ. R. CRIM. P. 2.2(b). A complaint in felony cases is a written statement of the essential facts
constituting a public offense, that is either signed by a prosecutor, or made upon oath before a magistrate.
ARIZ. R. CRIM. P. 2.3.
165
ARIZ. R. CRIM. P. 2.4(a).
166
ARIZ. R. CRIM. P. 3.1(a).

25

(3)

Intending or knowing that the person’s conduct will cause death to a law
enforcement officer, the person causes the death of a law enforcement
officer who is in the line of duty. 167

2. Initial Appearance, Preliminary Hearing, Arraignment, Notice of Intent to
Seek the Death Penalty, Mental Evaluations, and Plea Agreements
Once a defendant has been arrested, s/he must be taken before a magistrate judge. 168 At
this initial appearance, the magistrate will, among other things, inform the defendant of
the charges against him/her, inform the defendant of his/her rights to counsel and to
remain silent, determine whether probable cause exists for the purpose of release from
custody, and appoint counsel if the defendant is eligible and requests counsel. 169
If the defendant was charged by complaint, the magistrate also will inform the defendant
of his/her right to a preliminary hearing and, unless the hearing is waived, set the hearing
date. 170 The trial judge may hold the arraignment in conjunction with the defendant’s
initial appearance. 171 If the defendant was charged by a grand jury indictment, the
magistrate may also conduct the arraignment. 172
When the defendant is charged by complaint, the magistrate will conduct a preliminary
hearing within ten (if the defendant is in custody) or twenty (if the defendant is not in
custody) days of the initial appearance. 173 The preliminary hearing is designed for the
magistrate to determine whether probable cause exists to hold the defendant for trial. 174
The finding of probable cause must be based on “substantial evidence.” 175 If probable
cause does not exist, the magistrate will dismiss the complaint and release the
defendant. 176 The defendant may waive the preliminary hearing. 177
Within ten (if the defendant is in custody) or thirty (if the defendant is not in custody)
days of filing the indictment or complaint, the trial court will arraign the defendant.178 At
the arraignment, the court will: (1) ascertain the defendant’s plea; (2) hear and decide
motions concerning the conditions of release; (3) set the date for trial or pretrial
conference; (4) advise the parties in writing of the dates of further proceedings and other
important deadlines; and (5) advise the defendant of his/her right to a jury trial. 179 At the
arraignment, the defendant may plead guilty, not guilty, or no contest to the charges. 180

167
168
169
170
171
172
173
174
175
176
177
178
179
180

ARIZ. REV. STAT. § 13-1105(A) (2006).
ARIZ. R. CRIM. P. 4.1(a).
ARIZ. R. CRIM. P. 4.2(a).
ARIZ. R. CRIM. P. 4.2(c).
ARIZ. R. CRIM. P. 14.1(e).
ARIZ. R. CRIM. P. 4.2(b).
ARIZ. R. CRIM. P. 5.1(a).
ARIZ. R. CRIM. P. 5.3(a).
ARIZ. R. CRIM. P. 5.4(c).
ARIZ. R. CRIM. P. 5.4(d).
ARIZ. R. CRIM. P. 5.1(b).
ARIZ. R. CRIM. P. 14.1(a).
ARIZ. R. CRIM. P. 14.3.
ARIZ. R. CRIM. P. 14.3(a).

26

The court may accept a plea of guilty or no contest only if it is made voluntarily and
intelligently. 181 Before accepting a plea of guilty or no contest, the court must address
the defendant and inform him/her (1) of the nature of the charge to which the plea is
offered; (2) of the nature and range of possible sentences; (3) of the constitutional rights
which the defendant forgoes by pleading guilty or no contest; (4) of the right to plead not
guilty; and (5) that the plea may have immigration consequences for non-citizen
defendants. 182
If the State intends to seek the death penalty, it must file a notice of intent to seek the
death penalty within 60 days of arraignment 183 and must at the same time provide notice
of the aggravating circumstances upon which it is relying to seek the death penalty. 184
When the State files a notice of intent to seek the death penalty, the court must appoint a
psychologist or psychiatrist to conduct a prescreening evaluation, unless the defendant
objects. 185 In this evaluation, the psychologist or psychiatrist will determine if
reasonable grounds exist to conduct an additional examination regarding the defendant’s
competency to stand trial and if the defendant was sane at the time s/he allegedly
committed the offense. 186
If the court determines that reasonable grounds for a psychological examination exist, it
will appoint two or more mental health experts to examine the defendant and testify as to
the defendant’s mental condition. 187 Within thirty days of receiving the experts’ reports,
the court will hold a hearing to determine the defendant’s competency. 188 If the court
determines that the defendant is competent, the proceedings continue uninterrupted. 189 If
the court finds that the defendant is not competent and there is no substantial probability
that the defendant will regain competency in the next twenty-one months, it may begin
civil commitment proceedings, order the appointment of a guardian, or release the
defendant from custody and dismiss the charges without prejudice. 190 If the court finds
the defendant not competent, it shall order competency restoration treatment unless there
is clear and convincing evidence that the defendant will not regain competency within
fifteen months. The court must determine whether the defendant should be subject to
involuntary treatment. 191 Upon receipt of an official report that the defendant has
become competent during inpatient services, motion of the defendant, expiration of the
maximum period set by the court to reestablish competency, or the court’s motion, the
court will hold a subsequent hearing to re-determine the defendant’s competency.192

181
182
183
184
185
186
187
188
189
190
191
192

ARIZ. R. CRIM. P. 17.3.
ARIZ. R. CRIM. P. 17.2.
ARIZ. R. CRIM. P. 15.1(i).
Id.; ARIZ. REV. STAT. § 13-703.01(B) (2006).
ARIZ. REV. STAT. § 13-703.03(A) (2006).
Id.
ARIZ. R. CRIM. P. 11.3(a).
ARIZ. R. CRIM. P. 11.5(a).
ARIZ. R. CRIM. P. 11.5(b)(1).
ARIZ. R. CRIM. P. 11.5(b)(2).
ARIZ. R. CRIM. P. 11.5(b)(3).
ARIZ. R. CRIM. P. 11.6(a).

27

In addition, a psychological expert will prescreen the defendant to determine his/her
intelligence quotient. 193 If the expert determines that the defendant’s IQ is seventy-five
or less, the court must appoint additional psychological experts to independently
determine whether the defendant has mental retardation. 194 If the experts all agree that
the defendant has an IQ above seventy, the notice of intent to seek the death penalty will
not be dismissed. 195 If all the experts do not agree that the defendant’s IQ is above
seventy, the court will hold a hearing to determine if the defendant has mental
retardation. At this hearing, the defendant has the burden of proving mental retardation
by clear and convincing evidence. There is a rebuttable presumption that the defendant
has mental retardation if the trial court determines that the defendant’s IQ is sixty-five or
lower. 196 If the court finds that the defendant has mental retardation, the court will
dismiss the notice of intent to seek the death penalty and will not impose a sentence of
death if the defendant is found guilty of first-degree murder. 197 Either side may appeal
this decision with the Arizona Court of Appeals. 198
The parties may negotiate and reach agreement on any aspect of the case. 199 The terms
of a plea agreement must be put into writing and signed by the defendant, the defendant’s
counsel, if any, and the prosecutor. 200 The court will then determine whether the
defendant understands and agrees with the plea agreement terms and, taking into account
the victim’s view, either accept or reject the plea agreement. 201 If the defendant pleaded
guilty to a capital offense but did not enter into a plea bargain as to sentence, the case
proceeds to the sentencing phase of the capital trial. If the defendant pleaded guilty to a
capital offense and entered into a plea bargain as to sentence, the defendant will begin
serving the agreed upon sentence.
B. The Capital Trial
Capital trials are heard in circuit court and are conducted in two phases: the
guilt/innocence phase and, if the defendant is found guilty, the sentencing proceeding,
which is further divided into an aggravation phase and a penalty phase. 202
1. Guilt/Innocence Phase
All individuals charged with a capital felony possess the right to a trial by jury, 203
although the defendant may waive this right with the consent of the prosecutor and the
court. 204 A capital jury is comprised of twelve individuals. 205 The State may dismiss
193
194
195
196
197
198
199
200
201
202
203
204
205

ARIZ. REV. STAT. § 13-703.02(B) (2006).
ARIZ. REV. STAT. § 13-703.02(D) (2006).
ARIZ. REV. STAT. § 13-703.02(F) (2006).
ARIZ. REV. STAT. § 13-703.02(G) (2006).
ARIZ. REV. STAT. § 13-703.02(H) (2006).
ARIZ. REV. STAT. § 13-703.02(I) (2006).
ARIZ. R. CRIM. P. 17.4(a).
ARIZ. R. CRIM. P. 17.4(b).
ARIZ. R. CRIM. P. 17.4(c), (d).
ARIZ. REV. STAT. § 13-703.01 (2006).
ARIZ. CONST. art. II, § 23; ARIZ. REV. STAT. § 13-703.01(S)(1) (2006).
ARIZ. REV. STAT. § 13-3983 (2006); ARIZ. R. CRIM. P. 18.1(b).
ARIZ. CONST. art. II, § 23; ARIZ. REV. STAT. § 21-102(A) (2006).

28

potential jurors from the jury pool if there are reasonable grounds to believe that a
potential juror entertains conscientious opinions about the death penalty that would
preclude his/her finding the defendant guilty 206 or that would prohibit the potential juror
from rendering a “fair and impartial verdict.” 207
During the guilt/innocence phase of the trial, the jury must decide whether the
prosecution has proved that the defendant is guilty of capital murder or some lesser
included offense or offenses beyond a reasonable doubt. 208 Both the State and defense
may present opening and closing arguments, as well as witnesses and other types of
evidence. After both sides have presented their closing arguments, the court will instruct
the jury as to the law of the case. 209
To render a verdict, the jury must be unanimous. 210 If the defendant is found not guilty
of any charge, s/he will be released from state custody. If the defendant is found not
guilty of the capital crime, but is found guilty of a lesser-included offense, he/she will
proceed to a non-capital sentencing proceeding. If the defendant is found not guilty by
reason of insanity or guilty except insane, the court should commit the defendant to a
secure mental health facility. 211 If the defendant is found guilty of the capital offense,
s/he proceeds to the aggravation phase of the capital trial. 212
After the defendant is found guilty, but before sentencing, the court must have a presentence report prepared. 213
2. Sentencing Phase
a. Aggravation Phase
To impose a death sentence, the State must prove the existence of at least one statutory
aggravating factor beyond a reasonable doubt. 214 If the defendant is death-eligible as a
result of a felony murder conviction, the State also must prove that the defendant killed,
attempted to kill or intended to kill, or was a major participant in the underlying felony
and acted with reckless disregard for human life. 215
Under current law, the statutory aggravating factors are defined as:
(1)

206
207
208
209
210
211
212
213
214
215

The defendant has been convicted of another offense in the United States
for which under Arizona law a sentence of life imprisonment or death was
imposable;

ARIZ. R. CRIM. P. 18.4(b) cmt., 14.
ARIZ. R. CRIM. P. 18.4(b).
ARIZ. REV. STAT. § 13-115(A); see also Everett v. State, 88 Ariz. 293, 297 (1960).
ARIZ. R. CRIM. P. 19.1(a).
ARIZ. CONST. art. II, § 23; see also State v. Counterman, 8 Ariz. App. 526, 531 (1968).
ARIZ. R. CRIM. P. 25.
ARIZ. REV. STAT. § 13-703.01(C) (2006); ARIZ. R. CRIM. P. 19.1(c).
ARIZ. R. CRIM. P. 26.4(a).
ARIZ. REV. STAT. § 13-703(B) (2006).
Tison v. Arizona, 481 U.S. 137 (1987); Edmund v. Florida, 458 U.S. 782 (1982).

29

(2)

(3)

(4)
(5)
(6)
(7)

(8)
(9)

(10)

(11)

(12)

(13)
(14)

The defendant has been or was previously convicted of a serious offense,
whether preparatory or completed. Convictions for serious offenses
committed on the same occasion as the homicide, or not committed on the
same occasion but consolidated for trial with the homicide, shall be treated
as a serious offense;
In the commission of the offense the defendant knowingly created a grave
risk of death to another person or persons in addition to the person
murdered during the commission of the offense;
The defendant procured the commission of the offense by payment, or
promise of payment, of anything of pecuniary value;
The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value;
The defendant committed the offense in an especially heinous, cruel or
depraved manner;
The defendant committed the offense while in the custody of or on
authorized or unauthorized release from the state department of
corrections, a law enforcement agency or a county or city jail or on
probation for a felony offense;
The defendant has been convicted of one or more other homicides that
were committed during the commission of the offense;
The defendant was an adult at the time the offense was committed or was
tried as an adult and the murdered person was under fifteen years of age,
was an unborn child in the womb at any stage of its development or was
seventy years of age or older;
The murdered person was an on duty peace officer who was killed in the
course of performing the officer’s official duties and the defendant knew,
or should have known, that the murdered person was a peace officer;
The defendant committed the offense with the intent to promote, further or
assist the objectives of a criminal street grant or criminal syndicate or to
join a criminal street gang or criminal syndicate;
The defendant committed the offense to prevent a person’s cooperation
with an official law enforcement investigation, to prevent a person’s
testimony in a court proceeding, in retaliation for a person’s cooperation
with an official law enforcement investigation or in retaliation for a
person’s testimony in a court proceeding;
The offense was committed in a cold, calculated manner without pretense
of moral or legal justification; and
The defendant used a remote stun gun or an authorized remote stun gun in
the commission of the offense. 216

Opening statements, evidence in support and against the existence of the alleged
aggravator(s), and closing arguments are then presented to the trier of fact. 217 The State

216

ARIZ. REV. STAT. § 13-703(F) (2006).
ARIZ. R. CRIM. P. 19.1(c)(2)-(7). A “trier of fact” is defined as meaning a jury unless the defendant and
the State waive a jury, in which case the “trier of fact” is a judge. ARIZ. REV. STAT. § 13-703.01(S)(1)
(2006). See also ARIZ. REV. STAT. § 13-703(D) (2006).
217

30

carries the burden of proof during the aggravation phase. 218 A victim 219 also has the right
to be present and, if s/he chooses, to present any relevant information. 220
The trier of fact must make a special finding as to whether each alleged aggravating
circumstance has been proven based on the evidence presented at trial or during the
aggravation phase. 221 If the trier of fact is the same judge or jury from the prior phase of
the trial, evidence that was admitted at trial and that relates to any aggravating
circumstances is considered admitted. 222 If the trier of fact is a jury, its decision must be
unanimous. 223 The defendant is entitled to a special finding that an aggravating
circumstance was not proven if the trier of fact unanimously finds that it was not
proven. 224 If the jury unanimously decides that no aggravating circumstances exist, the
death penalty is removed as a sentencing option. 225
If a jury is unable to reach a decision as to one or more of the alleged aggravating
circumstances and has been unable to find at least one aggravator beyond a reasonable
doubt, the court will dismiss the jury and impanel a new one. 226 The new jury will not
retry the defendant’s guilt or any aggravating circumstance the previous jury
unanimously found not proven. 227 If the new jury also is unable to reach a unanimous
verdict, the death penalty is removed as a sentencing option. 228
If the jury finds one or more aggravating circumstances proven, the trial moves to the
penalty proceeding. 229
b. Penalty Phase
At the penalty phase of a capital trial, the defendant and the State may present evidence
that is relevant to whether there is mitigating evidence that is sufficiently substantial to
call for leniency. 230
The penalty hearing begins with opening statements by the defense and the State. 231
Following opening statements, the victim’s survivors are allowed to make a statement
relating to the victim and the impact of the crime on their family.232 Currently, a victim’s

218

ARIZ. REV. STAT. § 13-703.01(P) (2006).
A victim may be the murdered’s individual’s spouse, parent, child, grandparent, sibling, or any other
person related by consanguinity or affinity to the second-degree or any other lawful representative, unless
that person is in custody for an offense or is the accused. ARIZ. REV. STAT. § 13-703.01(S)(2) (2006).
220
ARIZ. REV. STAT. § 13-703.01(R) (2006).
221
ARIZ. REV. STAT. § 13-703.01(E) (2006).
222
ARIZ. REV. STAT. § 13-703(D) (2006).
223
Id.
224
Id.
225
Id.
226
ARIZ. REV. STAT. § 13-703.01(J) (2006); see also ARIZ. REV. STAT. § 13-703(D) (2006).
227
ARIZ. REV. STAT. § 13-703.01(J) (2006); see also ARIZ. REV. STAT. § 13-703(D) (2006).
228
ARIZ. REV. STAT. § 13-703.01(J) (2006); see also ARIZ. REV. STAT. § 13-703(D) (2006).
229
ARIZ. REV. STAT. § 13-703.01(F) (2006); ARIZ. R. CRIM. P. 19.1(D).
230
ARIZ. REV. STAT. § 13-703.01(G) (2006).
231
ARIZ. R. CRIM. P. 19.1(D)(1), (2).
232
ARIZ. REV. STAT. § 13-703.01(R) (2006); ARIZ. R. CRIM. P. 19.1(D)(3).
219

31

family member is not allowed to advocate for any particular sentence.233 However, a
conditional law has been enacted allowing for victims’ sentencing recommendations if
“on or before June 30, 2013, the Arizona [S]upreme [C]ourt or the [S]upreme [C]ourt of
the United States rules that it is constitutional for a crime victim in a capital case to make
a sentencing recommendation.” 234
The defense may then present evidence in support of mitigation. 235 The trier of fact will
consider any factors proffered by the defendant or the State that are relevant in
determining whether to impose a death sentence, including any aspect of the defendant’s
character, propensities, or record and any of the circumstances of the offense. 236 If the
trier of fact is the same judge or jury that determined the defendant’s guilt, evidence
admitted at any stage of the trial will be deemed admitted in this penalty phase. 237 While
mitigating circumstances are not limited to the following, statutory mitigating factors are
defined as:
(1)

(2)
(3)

(4)

(5)

The defendant’s capacity to appreciate the wrongfulness of his/her
conduct or to conform his/her conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a defense to
prosecution;
The defendant was under unusual and substantial duress, although not
such as to constitute a defense to prosecution;
The defendant was legally accountable for the conduct of another, but
his/her participation was relatively minor, although not so minor as to
constitute a defense to prosecution;
The defendant could not reasonably have foreseen that his/her conduct in
the course of the commission of the offense for which the defendant was
convicted would cause, or would create a grave risk of causing, death to
another person; and
The defendant’s age. 238

The defendant has the burden of proving the existence of any and all mitigating
circumstances by a preponderance of the evidence. 239
Upon the close of evidence, the defendant may make a statement of allocution to the jury,
the State and defense may make closing arguments, and the judge will instruct the jury as
to the law governing the case. 240
If the trier of fact is a jury, unanimity is not required for individual mitigating
circumstances and each juror is entitled to consider any mitigation s/he believes has been

233
234
235
236
237
238
239
240

ARIZ. R. CRIM. P. 19.1(D)(3); Lynn v. Reinstein, 68 P. 3d 412 (Ariz. 2003).
ARIZ. REV. STAT. § 13-4426 (2006); 2003 Ariz. Sess. Laws 255 § 8. But see Lynn, 68 P. 3d at 412.
ARIZ. R. CRIM. P. 19.1(d)(4).
ARIZ. REV. STAT. § 13-703(G) (2006).
ARIZ. REV. STAT. § 13-703(D) (2006).
ARIZ. REV. STAT. § 13-703(G) (2006).
ARIZ. REV. STAT. §§ 13-703(C), 13-703.01(P) (2006).
ARIZ. R. CRIM. P. 19.1(d)(7)-(9).

32

proven. 241 However, the jury must unanimously decide that death is the appropriate
sentence. 242 In making that determination, the jury must determine whether there is
mitigation sufficiently substantial to call for leniency. 243 If the jury unanimously decides
that death is not appropriate, the court will decide whether to impose a sentence of life or
natural life. 244
If the jury is unable to reach a verdict, the court will dismiss the jury and impanel a new
one. 245 This new jury will not retry the issue of guilt or aggravation and is only
impaneled to determine the appropriate sentence. 246 If the new jury cannot reach a
unanimous decision, the court will impose a sentence of life or natural life. 247
If the defendant is convicted of first-degree murder or sentenced to death, the defendant
may request a new trial, aggravation, or penalty proceeding. 248 The court may grant a
new trial or aggravation or penalty hearing for the following reasons:
(1)
(2)
(3)
(4)
(5)

The verdict is contrary to law or to the weight of the evidence;
The prosecutor has been guilty of misconduct;
A juror or jurors have been guilty of misconduct;
The court has erred in the decision of a matter of law, or in the instruction
of the jury on a matter of law to the substantial prejudice of a party; and
For any other reason not due to the defendant’s own fault the defendant
has not received a fair and impartial trial or capital sentencing.249

In addition, either party may move to vacate the judgment. The court may vacate the
judgment if (1) the court was without jurisdiction; (2) newly discovered material facts
exist; or (3) the conviction was obtained in violation of the United States or Arizona
Constitutions. 250
After imposing a sentence of death, or after denial of the motion to vacate judgment, the
court clerk will file an automatic notice of appeal from the judgment and sentence. 251
C. The Direct Appeal
An individual convicted of capital murder may have his/her conviction reviewed in the
Arizona Supreme Court and/or the United States Supreme Court. The Arizona Supreme
Court has exclusive state court jurisdiction and is obligated to review all cases in which

241
242
243
244
245
246
247
248
249
250
251

ARIZ. REV. STAT. § 13-703(C) (2006).
ARIZ. REV. STAT. § 13-703.01(H) (2006).
ARIZ. REV. STAT. § 13-703.01(G) (2006).
ARIZ. REV. STAT. § 13-703.01(H) (2006).
ARIZ. REV. STAT. § 13-703.01(K) (2006)
Id.
Id.
ARIZ. R. CRIM. P. 24.1(a).
ARIZ. R. CRIM. P. 24.1(c).
ARIZ. R. CRIM. P. 24.2(a).
ARIZ. R. CRIM. P. 26.15; ARIZ. R. CRIM. P. 24.2(d).

33

the defendant has been convicted of capital murder and sentenced to death. 252 The
United States Supreme Court may hear an appeal, but is not required to do so.
A person who is convicted of capital murder and sentenced to death receives an
automatic appeal to the Arizona Supreme Court, 253 even if s/he pleads guilty to capital
murder. 254 Upon entering a sentence of death, the Superior Court clerk will file a notice
of appeal on the defendant’s behalf. 255 Within forty-five days of the filing of that notice,
the Superior Court clerk will send the trial court record to the Arizona Supreme Court. 256
Once the complete record has been filed, notice is given to all parties.257 The appellant
(formerly, the defendant) then has seventy days from the mailing of that notice to file an
opening brief. 258 The State’s answering brief is due forty days after service of the
opening brief, and appellant’s reply brief is due twenty days after service of the State’s
brief. 259
In this appeal, the Arizona Supreme Court independently reviews the case to determine
whether the trier of fact abused its discretion in finding the aggravating circumstances
and imposing a sentence of death. 260 If the Court determines that a sentencing error
occurred, it must then determine if the error was harmless beyond a reasonable doubt. If
the error was harmless beyond a reasonable doubt, the Court will uphold the sentence. If
the Court cannot determine whether the error was harmless beyond a reasonable doubt,
the Court will remand the case for a new sentencing proceeding. 261
When trial counsel is allowed to withdraw from representing the defendant on appeal, the
trial or appellate court must appoint new counsel for a defendant legally entitled to such
representation on appeal. 262
In reviewing the case, the Court has at its disposal a copy of the trial transcript, all
documents, papers, books and photographs introduced into evidence, and all pleadings
and documents in the file besides subpoenas and praecipes not specifically designated. 263
In addition, both parties may submit briefs. 264 Either party may request that oral
arguments be held on the issues raised in their briefs. 265 However, the Court may decide
the case without holding oral arguments if it determines that (1) the appeal is frivolous;
(2) the dispositive issue or set of issues presented has been recently authoritatively
decided; or (3) the facts and legal arguments are adequately presented in the briefs and

252
253
254
255
256
257
258
259
260
261
262
263
264
265

ARIZ. REV. STAT. §§ 13-703.04(A), 12-120.21(A)(1); 13-4031 (2006); ARIZ. R. CRIM. P. 26.15.
ARIZ. REV. STAT. §§ 13-4031, 13-703.05(A) (2006); ARIZ. R. CRIM. P. 26.15.
State v. Cropper, 68 P.3d 407, 408 (Ariz. 2003).
ARIZ. R. CRIM. P. 26.15; see also ARIZ. R. CRIM. P. 31.2(b).
ARIZ. R. CRIM. P. 31.9(A).
ARIZ. R. CRIM. P. 31.10.
ARIZ. R. CRIM. P. 31.13(f)(1).
Id.
ARIZ. REV. STAT. § 13-703.05(A) (2006).
ARIZ. REV. STAT. § 13-703.05(B) (2006).
ARIZ. R. CRIM. P. 6.6.
ARIZ. R. CRIM. P. 31.8(a).
ARIZ. R. CRIM. P. 31.13(f).
ARIZ. R. CRIM. P. 31.14(a).

34

record and the decision-making process would not be significantly aided by oral
arguments. 266
The Arizona Supreme Court may “reverse, affirm, or modify the action of the lower court
and issue any necessary and appropriate orders.” 267 Additionally, if “an illegal sentence
has been imposed upon a lawful verdict or finding of guilty by the trial court, the
[S]upreme [C]ourt shall correct the sentence to correspond to the verdict or finding.”268
In addition, if the court finds that the evidence introduced at trial is not legally sufficient
to establish the defendant’s guilt, but is legally sufficient to establish the defendant’s guilt
as to a necessarily included offense, it may modify the judgment to one of conviction for
the lesser offense and remand to the trial court for re-sentencing. 269 Upon announcing its
decision, the Court may issue an opinion that addresses the facts of the case and issues of
law. 270
Either party may, but is not required to, file for reconsideration of an appellate court’s
decision in order to raise specific points or matters of fact or law in which it is claimed
that the appellate court erred in determination. 271
Either party then may file a writ of certiorari with the United States Supreme Court. The
United States Supreme Court either may deny or accept appellant’s case for review. If
the United States Supreme Court accepts the case, the Court may affirm the conviction
and the sentence, affirm the conviction and overturn the sentence, or overturn both the
conviction and sentence.
If the United States Supreme Court does not accept the case for review, or accepts the
case but either (1) does not overturn the appellant’s conviction and/or sentence or (2)
reinstates the appellant’s conviction and/or sentence, the appellant’s conviction and
sentence are considered final. Alternatively, if neither party files a writ of certiorari with
the United States Supreme Court, the conviction and sentence becomes final once the
time to file a writ of certiorari has expired. If the appellant wishes to continue
challenging the conviction and/or sentence, s/he may file a petition for post-conviction
relief.
D. State Post-Conviction
A defendant under sentence of death is entitled to file a collateral appeal. 272 Once the
Supreme Court affirms the conviction and sentence on direct appeal, the Arizona
Supreme Court clerk files a notice of post-conviction relief with the trial court. 273 The
Supreme Court or if authorized by the Supreme Court, the presiding judge of the county
in which the case originated appoints counsel for the defendant, 274 if the defendant is
266
267
268
269
270
271
272
273
274

Id.
Ariz. R. Crim. P. 31.17(b).
ARIZ. REV. STAT. § 13-4037(a) (2006).
ARIZ. R. CRIM. P. 31.17(d).
ARIZ. R. CRIM. P. 31.17(e).
ARIZ. R. CRIM. P. 31.18.
ARIZ. REV. STAT. §§ 13-4231 et seq., 13-4121 et seq. (2006).
ARIZ. REV. STAT. § 13-4234(D) (2006); see also ARIZ. R. CRIM. P. 32.4(a).
ARIZ. REV. STAT. § 13-4041(B) (2006).

35

determined to be indigent. 275 The defendant must then file a post-conviction relief
petition within 120 days of the filing of the notice. 276
The post-conviction petition should include every possible ground known for vacating,
reducing, correcting, or changing the conviction and/or death sentence. 277 The defendant
cannot dispute the conviction or sentence directly, but can allege state and federal
constitutional violations, such as whether defense counsel was constitutionally
effective. 278 Potential grounds for relief include:
(1)
(2)
(3)
(4)
(5)

(6)

(7)

(8)

The conviction or the sentence was in violation of the United States or
Arizona Constitutions;
The court was without jurisdiction to render judgment or impose sentence;
The sentence imposed exceeded the maximum authorized by law, or is
otherwise not in accordance with the sentence authorized by law;
The person is being held in custody after the sentence imposed has
expired;
Newly discovered material facts probably exist and such facts probably
would have changed the verdict or sentence. Newly discovered material
facts exist if: (a) the facts were discovered after the trial; (b) the defendant
exercised due diligence in securing the newly discovered material facts;
and (c) the newly discovered material facts are not merely cumulative or
used for impeachment, unless the impeachment evidence substantially
undermines testimony which was of critical significance at trial such that
the evidence probably would have changed the verdict or sentence.
The defendant’s failure to file a notice of post-conviction relief of-right or
notice of appeal within the prescribed time was without fault on the
defendant’s part;
There has been a significant change in the law that if determined to apply
to defendant’s case would probably overturn the defendant’s conviction or
sentence; or
The defendant demonstrates by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found the defendant guilty of the
underlying offense beyond a reasonable doubt, or that the court would not
have imposed the death penalty. 279

Petitions that were not filed in a timely manner may raise claims four (4) through eight
(8), but may not raise claims one (1) through (3). 280

275

ARIZ. R. CRIM. P. 32.4(c)(1).
Id.; ARIZ. REV. STAT. § 13-4122 (2006). See also, State ex. rel. Napolitano v. Brown, 982 P.2d 815
(1999) (en banc) (holding that the Arizona code provision allowing a defendant only sixty days to file a
post-conviction relief petition was unconstitutional under the separation of powers doctrine because it
conflicted with the court rule allowing 120 days).
277
ARIZ. R. CRIM. P. 32.5.
278
ARIZ. R. CRIM. P. 32.1.
279
Id.
280
ARIZ. R. CRIM. P. 32.4(a).
276

36

Claims that could have been raised on direct appeal or on post-trial motion, that were
finally adjudicated on the merits on appeal or in any previous collateral proceeding, or
that were waived at trial, on appeal, or in any previous collateral proceeding are not
eligible for relief. 281 The State has the burden of proving by a preponderance of the
evidence any ground of preclusion asserted, 282 but the court also may find preclusion sua
sponte.
The State must file its response to the defendant’s petition within forty-five days. 283 The
defendant may file a reply within fifteen days after receipt of the State’s response.284 The
court then reviews the petition and identifies all procedurally defaulted claims. The court
will dismiss the petition if, after identifying all precluded claims, the court determines
that no remaining claim presents a material issue of law or fact. 285 If claims that present
material issues of law or fact remain, the court will hold an evidentiary hearing within
thirty days. 286
In an evidentiary hearing, the court hears arguments to determine issues of material
fact. 287 The petitioner has the burden of proving the allegations of fact by a
preponderance of the evidence.288 If a constitutional defect is proven, the state must
prove that the defect was harmless beyond a reasonable doubt. 289
Once the court hears oral arguments and reviews the case, it must issue a ruling either
granting or denying petitioner’s motion. 290 If the court finds in favor of the defendant, it
will enter an appropriate order with respect to the conviction, sentence or detention, any
further proceedings, including a new trial and conditions of release, and other necessary
matters. 291 In issuing the order, the court will make specific findings of fact and
expressly state its conclusions of law. 292
If either party believes that the court erred in its decision, it may move for a rehearing. 293
If the motion for a rehearing is granted, the court may amend its previous ruling without a
hearing or grant a new hearing and either amend or reaffirm its previous ruling. If the
court amends its previous ruling, it must explain its reasoning.294
Either party may appeal the Rule 32 decision to the Arizona Supreme Court within thirty
days after the final decision of the trial court on the petition for post-conviction relief or
the motion for rehearing. 295 The other party may file a cross-petition for review within
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295

ARIZ. REV. STAT. § 13-4232(A) (2006); ARIZ. R. CRIM. P. 32.2(a).
ARIZ. REV. STAT. § 13-4232(C) (2006); ARIZ. R. CRIM. P. 32.2(c).
ARIZ. R. CRIM. P. 32.6(a).
ARIZ. R. CRIM. P. 32.6(b).
ARIZ. R. CRIM. P. 32.6(c); see also ARIZ. REV. STAT. § 13-4130 (2006).
ARIZ. R. CRIM. P. 32.6(c).
ARIZ. R. CRIM. P. 32.8(a).
ARIZ. R. CRIM. P. 32.8(c).
Id.
ARIZ. R. CRIM. P. 32.8(d).
Id.; ARIZ. REV. STAT. § 13-4131 (2001).
ARIZ. R. CRIM. P. 32.8(d).
ARIZ. R. CRIM. P. 32.9(a).
ARIZ. R. CRIM. P. 32.9(b).
ARIZ. R. CRIM. P. 32.9(c).

37

fifteen days after service of a petition for review. 296 The petition and/or cross-petition
should include a discussion of the issues that were decided by the trial court and which
the defendant wishes to present for review, the facts material to a consideration of those
issues, and the reasons why the petition should be granted. 297 Failure to raise any issue in
the petition or cross-petition that could be raised for review constitutes waiver of
appellate review of that issue. 298 Responses to the petition and cross-petition may be
filed within thirty days from the date upon which the petition/cross-petition is served. 299
The Arizona Supreme Court is not required to hear the appeal. If the court grants review,
it may order oral arguments and may issue such orders and grant such relief as it deems
necessary and proper. 300
If the Arizona Supreme Court declines to hear the appeal or affirms the lower court’s
decision, the petitioner may file a request for certiorari with the United States Supreme
Court. If the United States Supreme Court declines to hear the appeal or affirms the
lower court decision, the collateral appeal is complete.
E. Federal Habeas Corpus
After the collateral appeal is finished, a petitioner (previously called the defendant)
wishing to challenge his/her conviction and/or sentence as being in violation of federal
law may file a petition for a writ of habeas corpus with a federal court. By filing the
petition, the warrant of execution for the petitioner will be stayed.
Prior to filing the petition, the petitioner must have raised all relevant federal claims in
state court. 301 In fact, a federal court could deny the petition on the merits despite the
petitioner’s failure to exhaust all state remedies. 302
In a petition for a writ of habeas corpus, the petitioner must identify and raise all possible
grounds of relief and summarize the facts supporting each ground. 303 If the petitioner
challenges a state court’s determination of a factual issue, the petitioner has the burden of
rebutting, by clear and convincing evidence, the federal law presumption that state court
factual determinations are correct. 304 Additionally, if the petitioner raises a claim that the
state court decided on the merits, the petitioner must establish that the state court’s
decision of the claim was contrary to or involved an unreasonable application of federal
law or was based on an unreasonable determination of the facts in light of the evidence
presented. 305 In addition to the petition, the petitioner may, but is not required to, attach
certified copies of the indictment, plea, and judgment to the petition. 306 If the petitioner
296
297
298
299
300
301
302
303
304
305
306

Id.
ARIZ. REV. STAT. § 13-4239(C) (2006); ARIZ. R. CRIM. P. 32.9(c)(1).
Id.
ARIZ. R. CRIM. P. 32.9(c)(2).
ARIZ. R. CRIM. P. 32.9(f).
28 U.S.C. § 2254(b)(1) (2006).
28 U.S.C. § 2254(b)(2) (2006) .
RULE 2(c) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
28 U.S.C. § 2254(e)(1) (2006).
28 U.S.C. § 2254(d) (2006).
28 U.S.C. § 2249 (2006).

38

does not include these documents with the petition, the respondent must promptly file
copies of those documents with the court. 307
The petition must be filed in the federal district court for the district wherein the
petitioner is in custody or in the district where the petitioner was convicted and
sentenced. 308 Arizona has one United States District Court that hears cases in Phoenix,
Tucson, Flagstaff, Yuma, and Prescott. 309
There are two different sets of deadlines for filing a federal habeas petition. Petitioners
must follow one set of deadlines if the state has “opt-ed in” to the “Special Habeas
Corpus Procedures in Capital Cases,” 310 and another if it has not. “Opting in,” among
other things, allows the state to use expedited procedures, but a state may only “opt-in” to
these expedited procedures if (1) the Attorney General of the United States certifies that
the state has established a mechanism for providing counsel in post-conviction
proceedings as provided in 28 U.S.C. § 2265; and (2) counsel was appointed pursuant to
that mechanism, petitioner validly waived counsel, petitioner retained counsel, or
petitioner was found not to be indigent. 311 The state must provide, either through court
rule or statute, standards for appointing, compensating, and reimbursing competent
counsel. 312 This mechanism must:
(1)
(2)

Offer counsel to all state prisoners under capital sentence; and
Provide the court of record the opportunity to enter an order—(a)
appointing one or more counsel to represent the prisoner upon a finding
that the prisoner is indigent and accepted the offer or is unable completely
to decide whether to accept or reject the offer; (b) finding, after a hearing
if necessary, that the prisoner rejected the offer of counsel and made the
decision with an understanding of its legal consequences; or (c) denying
the appointment of counsel upon a finding that the prisoner is not
indigent. 313

In states that have “opted in,” the deadline for federal habeas corpus petitions is 180 days
after the conviction and death sentence have been affirmed on direct review or the time
allowed for seeking such review has expired. 314 In states that have not “opted in”, the
deadline for filing the petition is one year from the date on which: (1) the judgment
became final; (2) the State impediment that prevented the petitioner from filing was
removed; (3) the United States Supreme Court recognized a new right and made it
retroactively applicable to cases on collateral review; or (4) the underlying facts of the
claim(s) could have been discovered through due diligence. 315 The one-year time
307

Id.
28 U.S.C. § 2241(d); Rule 3(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.; FED.
R. APP. PROC. 22(a).
309
See United States District Court, District of Arizona, at http://www.azd.uscourts.gov/ (last visited July
5, 2006).
310
28 U.S.C. §§ 2261-2266 (2006).
311
28 U.S.C. § 2261(b) (2006).
312
28 U.S.C. § 2261(c) (2006).
313
Id.
314
28 U.S.C. § 2263(a) (2006).
315
28 U.S.C. § 2244(d)(1) (2006).
308

39

limitation may be tolled if the petitioner is pursing a properly filed application for state
post-conviction relief or other collateral review. 316
There is some question as to whether Arizona is or is not qualified as an “opt in” state.
While the United States Court of Appeals for the Ninth Circuit stated in Spears v. Stewart
that Arizona qualifies to “opt in,” the statement was contained in dicta and the court held
that the “opt in” procedures did not apply to the case in question, due to the state’s failure
to adhere to its procedures requiring the timely appointment of counsel in state postconviction proceedings. 317 To date, no federal court has applied the opt-in procedures to
an Arizona habeas petitioner and the United States Department of Justice has not yet
published regulations regarding the circumstances under which the Attorney General of
the United States will certify that a state has established a mechanism for providing
counsel in post-conviction proceedings.
Regardless of whether Arizona is considered to be an “opt in” state or not, once the
petition is filed, a district court judge reviews it to determine whether, based on the face
of the petition, the petitioner is entitled to relief in the district court. 318 If the judge finds
that the petitioner is not entitled to relief, the judge may summarily dismiss the
petition. 319 In contrast, if the judge finds that the petitioner may be entitled to district
court relief, the judge will order the respondent (the state) to file an answer replying to
the allegations contained in the petition. 320 In addition to the answer, the respondent
must furnish all portions of the state court transcripts it deems relevant to the petition. 321
The judge on his/her own motion or on the motion of the petitioner may order that
additional portions of the state court transcripts be provided to the parties. 322
Additionally, either party may submit a request for the invocation of the discovery
process. 323 The judge may grant such request if the requesting party establishes “good
cause.” 324 The judge also may direct the parties to expand the record by providing
additional evidence relevant to the merits of the petition. 325 This may include: letters
predating the filing of the petition, documents, exhibits, answers to written
interrogatories, and affidavits. 326
Upon review of the state court proceedings and the evidence presented, the judge must
determine whether an evidentiary hearing to address some or all of the petitioner’s claims
is required. 327 The judge may not hold an evidentiary hearing on a claim for which the
applicant failed to develop any factual basis during the state court proceedings unless (1)
the claim is based on newly recognized constitutional law or newly discovered,
316
317
318
319
320
321
322
323
324
325
326
327

28 U.S.C. § 2244(d)(2) (2006).
Spears v. Stewart, 267 F.3d 1026 (9th Cir. 2001).
RULE 4 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
Id.
RULES 4 and 5 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
RULE 5 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
Id.
RULE 6(b) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
RULE 6(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
RULE 7(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
RULE 7(b) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
RULE 8(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.

40

previously unavailable evidence; or (2) the facts underlying the claim would be sufficient
to establish that but for constitutional error no reasonable fact finder would have found
the applicant guilty of the underlying offense. 328 If the judge decides that an evidentiary
hearing is unnecessary, the judge will make a decision on the petition without additional
evidence. 329 However, if an evidentiary hearing is required, the judge should appoint
counsel to the petitioner 330 and conduct the hearing as promptly as possible. 331
During the evidentiary hearing, the judge will resolve any factual discrepancies that are
material to the petitioner’s claims. Based on the evidence presented, the judge may grant
the petitioner a new guilt/innocence or sentencing proceeding or a new appeal, or leave
the conviction and sentence intact.
In order to appeal the district court judge’s decision, the applicant for the appeal must file
a notice of appeal with the district court within thirty days after the judgment. 332 If the
petitioner seeks the appeal, s/he must also request a “certificate of appealability” from
either a district or circuit court judge. 333 A judge may issue a “certificate of
appealability” only if the petitioner makes a substantial showing of the denial of a
constitutional right in the request for the certificate.334 If the “certificate of appealability”
is granted, the appeal will proceed to the Ninth Circuit Court of Appeals.
In appealing to the United States Court of Appeals, an appellant (defendant/petitioner)
files a brief arguing that the district court erred in denying relief. The Office of the
Attorney General, representing the State of Arizona, files a brief in response. The court
generally holds oral arguments before a three-judge panel, although the judges of the
court may agree to hear a case en banc in some situations. After oral arguments, the
court considers the briefs and the arguments and issues a written opinion either affirming
or reversing the district court’s decision. In rendering its decision, the Ninth Circuit may
consider the record from the federal district court, the briefs submitted by the parties, and
the oral arguments, if permitted. Based on the evidence, the Ninth Circuit may order a
new appeal in the federal district court or the state court, or a new guilt/innocence or
sentencing proceeding.
Both parties may then seek review of the Ninth Circuit Court’s decision by filing a
petition for a writ of certiorari in the United States Supreme Court. 335 The United States
Supreme Court may either grant or deny review of the petition. If the Court grants
review of the petition it may deny the petitioner relief or order a new guilt/innocence or
sentencing trial or a new appeal.
If the petitioner wishes to file a second or successive habeas corpus petition, s/he must
submit a motion to the Ninth Circuit Court of Appeals requesting an order authorizing the
328

28 U.S.C. § 2253(e)(2) (2006).
RULE 8(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
330
RULE 8(c) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.; 18 U.S.C.A. § 3006A(g)
(2006) (denoting the qualifications for federal habeas corpus counsel).
331
RULE 8(c) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DIST. CT.
332
FED. R. APP. PROC. 4(a)(1)(A).
333
28 U.S.C.A. § 2253(c)(1) (2006); FED. R. APP. PROC. 22(b)(3).
334
28 U.S.C.A. § 2253(c)(2) (2006)
335
28 U.S.C.A. § 1254(1) (2006).
329

41

petitioner to file and the district court to consider the petition. 336 A three-judge panel of
the Ninth Circuit must consider the motion. 337 The panel specifically must assess
whether the petition makes a prima facie showing that the claims presented in the second
or successive petition were not previously raised and that the new claims rely on a new,
previously unavailable constitutional rule or newly discovered, previously
unascertainable facts that, if proven, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable fact finder would
have found the applicant guilty of the underlying offense. 338 Any second or successive
petition that presents a claim raised in a prior petition will be dismissed. 339
If the Ninth Circuit denies the motion, the petitioner may not seek appellate review of
such decision. 340 If the Ninth Circuit grants the motion, then the second or successive
motion will continue through the same process as the initial petition.
The petitioner may seek final review of his/her conviction and sentence by filing a
petition for clemency. 341
F. Clemency
Under the Arizona Constitution, the Governor is given clemency powers in accordance
with the conditions, restrictions, and limitations provided by law. 342 Arizona law permits
the granting of reprieves, commutations, and pardons to individuals under a sentence of
death. 343
The Arizona legislature created the Board of Executive Clemency (Board) to oversee the
clemency process. The Board must recommend a reprieve, commutation, parole, or
pardon before the Governor may grant or deny such a request. 344
To initiate the clemency process, the inmate must complete and sign an application for
commutation. 345 At least ten days before the Board acts upon an application, the
applicant must notify the county attorney of his/her intent to apply. Unless the Governor
waives this requirement, a copy of the notice must be published for thirty days in a paper
in the county where the conviction occurred. These provisions do not apply if the
applicant is in imminent danger of death or is within ten days of execution. 346
For an inmate who committed a capital offense before January 1, 1994, all applications
for reprieves, commutations, and pardons made to the Governor are transmitted

336
337
338
339
340
341
342
343
344
345
346

28 U.S.C.A. § 2244(a)(3)(A) (2006).
28 U.S.C.A. § 2244(b)(3)(B) (2006).
28 U.S.C.A. § 2244(b)(2) (2006).
28 U.S.C.A. § 2244(b)(1) (2006).
28 U.S.C.A. § 2244(b)(3)(E) (2006).
ARIZ. REV. STAT. § 31-443 (2006).
ARIZ. CONST. art. v, § 5.
ARIZ. REV. STAT. § 31-443 (2006).
ARIZ. REV. STAT. § 31-402 (A), (C) (2006).
Ariz. Bd. of Exec. Clemency Pol’y 400.13(A).
ARIZ. REV. STAT. § 31-442 (2006).

42

immediately to the Chairman of the Board. Once received, the Board will consider the
application and return the application with its recommendation to the Governor. 347
For an inmate who committed a capital offense on or after January 1, 1994, the Board
will hold a hearing in which the victim, county attorney, and presiding judge are given
the opportunity to be heard. After the hearing, the Board may recommend that the
Governor commute the death sentence after finding clear and convincing evidence that
(1) the sentence imposed is excessive given the nature of the offense and the offender’s
record; and (2) there is a substantial probability that when released the offender will
conform the offender’s conduct to the requirements of law. 348
Only eligible applicants, as deemed by the Department of Corrections, will be scheduled
for a hearing. 349
Commutation hearings generally occur in two phases. During the first phase, the Board
will review the application, as well as applicant files, letters, and all relevant information.
Family, friends, victims, other witness, and legal counsel may submit written information
or provide oral testimony. At the conclusion of the hearing, the Board may find by
majority vote that there is no basis for further consideration or that there are sufficient
reasons to warrant further investigation. If further investigation is warranted, the Board
will hold a phase two hearing. 350 If the inmate is in imminent danger of death or is the
subject of a warrant of execution, the first hearing phase may be waived. 351
At the phase two hearing, the Board interviews the applicant, reviews all relevant
information, including a report prepared by Board staff, and takes testimony from family,
friends, victims, other witnesses, and legal counsel. At the end of the hearing, the Board
issues a final decision to recommend or not recommend clemency to the Governor. 352
When the Board recommends a commutation of sentence, it must send a letter to the
Governor explaining its reasoning. Board members may also send letters of dissent. 353
The case materials considered by the Board also are sent to the Governor. 354
If the Board recommends clemency, the Governor has great discretion in deciding
whether to accept or reject that recommendation. 355 When the Governor does grant a
commutation, pardon, reprieve or stay, or suspends the execution of sentence, however,
s/he must publish the reasons for granting the clemency request in a newspaper of general
circulation within ten days. 356

347

ARIZ. REV. STAT. § 31-402(B) (2006).
ARIZ. REV. STAT. § 31-402(C)(2) (2006).
349
Ariz. Bd. of Exec. Clemency Pol’y 400.13(B).
350
Ariz. Bd. of Exec. Clemency Pol’y 400.13(F)(1).
351
Ariz. Bd. of Exec. Clemency Pol’y 400.13(F).
352
Ariz. Bd. of Exec. Clemency Pol’y 400.13(F)(2).
353
Ariz. Bd. of Exec. Clemency Pol’y 400.13(G).
354
Ariz. Bd. of Exec. Clemency Pol’y 400.13(H).
355
United States Court of Appeals for the Ninth Circuit, Ninth Circuit Capital Punishment Handbook, at
http://www.ce9.uscourts.gov/web/sdocuments.nsf/3779242195bb2339882568480080d277.
356
ARIZ. REV. STAT. § 31-445 (2006).
348

43

Any unanimous recommendation for commutation by the present and voting Board
members not acted on by the Governor within ninety days automatically becomes
effective. 357
G. Execution
Once the Arizona Supreme Court has affirmed the death sentence and the first postconviction relief proceeding has finished, or the period of time available to file a postconviction petition has expired, the Court will issue a warrant of execution to the Director
of the Department of Corrections. 358 The warrant authorizes the Director of the
Department of Corrections to carry out the execution between thirty-five and sixty days
after the Arizona Supreme Court’s mandate or order denying review or upon the State’s
motion. 359 If a court grants a stay of execution, the Arizona Supreme Court will grant
subsequent execution warrants upon motion by the State.360
For offenses committed on or after November 23, 1992, lethal injection is the only legal
method of execution. For offenses committed before November 23, 1992, the inmate
may choose to be executed by lethal injection or lethal gas. 361
The Director of the Department of Corrections or the director’s designee must attend the
execution. In addition, the Director will invite the Attorney General and at least twelve
other witnesses of his/her choice to attend the execution. At the request of the defendant,
the Director will allow up to two clergy people and up to five relatives or friends to
attend. Peace officers also may be invited. Minors are prohibited from witnessing an
execution. 362

357
358
359
360
361
362

ARIZ. REV. STAT. § 31-402(D) (2006).
ARIZ. REV. STAT. §§ 13-706(A), 13-4040 (2002).
ARIZ. R. CRIM. P. 31.17(C)(3).
ARIZ. REV. STAT. § 13-706(A) (2002).
ARIZ. CONST. art. xxii, § 22; ARIZ. REV. STAT. § 13-704(A), (B) (2006).
ARIZ. REV. STAT. § 13-705 (2006).

44

CHAPTER TWO
COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE
INTRODUCTION TO THE ISSUE
DNA testing is a useful law enforcement tool that can help to establish guilt as well as
innocence. In 2000, the American Bar Association adopted a resolution urging federal,
state, local, and territorial jurisdictions to ensure that all biological evidence collected
during the investigation of a criminal case is preserved and made available to defendants
and convicted persons seeking to establish their innocence. 1 Since then, over thirty-five
jurisdictions have adopted laws concerning post-conviction DNA testing. 2 However, the
standards for preserving biological evidence and for seeking and obtaining postconviction DNA testing vary widely among the states.
Many who may have been wrongfully convicted cannot prove their innocence because
states often fail to adequately preserve material evidence. Written procedures for
collecting, preserving and safeguarding biological evidence should be established by
every law enforcement agency, made available to all personnel, and designed to ensure
compliance with the law. 3 The procedures should be regularly updated as new or
improved techniques and methods are developed. The procedures should impose
professional standards on all state officials responsible for handling or testing biological
evidence, and should be enforceable through the agency’s disciplinary process. 4
Accuracy in criminal investigations should also be enhanced by utilizing the training
standards and disciplinary policies and practices of Peace Officer Standards and Training
Councils, 5 and through the priorities and practices of other police oversight groups. 6

1

See ABA Criminal Justice Section, Recommendation 115, 2000 Annual Meeting, available at
http://www.abanet.org/crimjust/policy/cjpol.html#am00115 (last visited on May 22, 2006).
2
See
National
Conference
of
State
Legislatures,
DNA
&
Crime,
at
http://www.ncsl.org/programs/health/genetics/dna.htm (last visited on May 22, 2006); see also Innocence
Project, Legislative Page, at http://www.innocenceproject.org/docs/Model_DNA_Factsheet.pdf (last visited
on May 22, 2006).
3
See 1 ABA Standards for Criminal Justice, Urban Police Function (2d ed. 1979) (Standard 1-4.3)
(“Police discretion can best be structured and controlled through the process of administrative rule making,
by police agencies.”); Id. (Standard 1-5.1) (stating that police should be “made fully accountable” to their
supervisors and to the public for their actions).
4
See id. (Standard 1-5.3(a)) (identifying “[c]urrent methods of review and control of police activities”).
5
Peace Officer Standards and Training Councils are state agencies that set standards for law
enforcement training and certification and provide assistance to the law enforcement community.
6
Such organizations include the U.S. Department of Justice which is empowered to sue police agencies
under authority of the pattern and practice provisions of the 1994 Crime Law. 28 U.S.C. § 14141 (2005);
Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF.
CRIM. L. REV. 814 (1999). In addition, the Commission on Accreditation for Law Enforcement Agencies,
Inc. (CALEA) is an independent peer group that has accredited law enforcement agencies in all fifty states.
Similarly, state-based organizations exist in many places, as do government-established independent
monitoring agencies. See CALEA Online, at http://www.calea.org/ (last visited on May 22, 2006). Crime
laboratories may be accredited by the American Society of Crime Laboratory Directors–Laboratory
Accreditation Board (ASCLD-LAB) or the National Forensic Science Technology Center (NFSTC).

45

Training should include information about the possibility that the loss or compromise of
evidence may lead to an inaccurate result. It also should acquaint law enforcement
officers with actual cases where illegal, unethical or unprofessional behavior led to the
arrest, prosecution or conviction of an innocent person. 7
Initial training is likely to become dated rapidly, particularly due to advances in scientific
and technical knowledge about effective and accurate law enforcement techniques. It is
crucial, therefore, that officers receive ongoing, in-service training that includes review of
previous training and instruction in new procedures and methods.
Even the best training and the most careful and effective procedures will be useless if the
investigative methods reflected in the training or required by agency procedures or law
are unavailable. 8 Appropriate equipment, expert advice, investigative time, and other
resources should be reasonably available to law enforcement personnel when law, policy,
or sound professional practice calls for them. 9

ASCLD-LAB, at http://www.ascld-lab.org/ (last
http://www.nfstc.org/ (last visited on Jan. 6, 2006).
7
Standard 1-7.3 provides:
(a)

(b)

visited

on

May

22,

2006);

NFSTC,

at

Training programs should be designed, both in their content and in their format, so that
the knowledge that is conveyed and the skills that are developed relate directly to the
knowledge and skills that are required of a police officer on the job.
Educational programs that are developed primarily for police officers should be designed
to provide an officer with a broad knowledge of human behavior, social problems, and
the democratic process.

1 ABA Standards for Criminal Justice, Urban Police Function (2d ed. 1979) (Standard 1-7.3); see also id.
(Standard 1-5.2(a)) (noting the value of “education and training oriented to the development of professional
pride in conforming to the requirements of law and maximizing the values of a democratic society”).
8
See generally 1 ABA Standards for Criminal Justice, Urban Police Function, Part VII (2d ed. 1979)
(“Adequate Police Resources”).
9
See, e.g., ABA House of Delegates, Report No. 8A, 2004 Midyear Meeting (requiring videotaping of
interrogations).

46

I. FACTUAL DISCUSSION
A. Preservation of DNA Evidence and Other Types of Evidence
In capital cases, the clerk of the superior court is obligated to permanently retain the
entire case file, which includes all original documents and evidence filed with the court.10
Prosecutors and law enforcement agencies do not have the same preservation
requirements, however, and are allowed to dispose of any items which were seized or
obtained for use in a criminal prosecution, in accordance with statutory and rule-based
procedures. 11 In some situations, prosecutors and law enforcement agencies are even
compelled to dispose of evidence. 12 Most notably, a prosecutor or law enforcement
agency generally must dispose of any item within thirty days after the case is no longer
“subject to modification.” 13
Before a law enforcement agency disposes of any item, however, it must notify the
prosecutor and the Office of the Attorney General.14 The prosecutor or the Attorney
General, in turn, may: (1) have the item photographed, reproduced, or otherwise
identified; (2) transcribe all serial numbers, identification numbers, or other identifying
marks; and/or (3) prepare, or have prepared by an expert, a report identifying the item. 15
If the item was used or may be used as evidence against the defendant, the defendant and
his/her counsel must be given notice at least ten days before the disposal. 16 The
defendant may then request a stay of disposal until after trial or may ask to examine, test,
analyze, or otherwise make a record of the item. 17 The prosecutor may impose any
“reasonable” conditions on this examination, testing, or analysis. 18 A court with
jurisdiction may stay the disposal of any item for a “reasonable time.” 19 Any records of
disposal are admissible in later court proceedings for any purpose for which the item
would have been admissible. 20
To ensure that “the police are neither intentionally selective or elusive, nor careless,
negligent, or lazy, in seizing and assuring the preservation of material evidence,” the
10

ARIZ. CODE OF JUD. ADMIN. § 3-402(A), (C)(1)(b)(2) (2006). Under the Code, “case file” is defined as
“the original documents or other material, regardless of physical form filed in an action or proceeding in a
court, either in paper or electronic format.” ARIZ. CODE OF JUD. ADMIN. §3-402(A) (2006).
11
ARIZ. R. CRIM. P. 28.2(a).
12
ARIZ. R. CRIM. P. 28.2(b).
13
Id. A case is no longer “‘subject to modification’: (1)([a]fter the defendant has been acquitted or the
charges dismissed with prejudice; (2) [s]ixty days after judgment and sentence have been entered, unless a
notice of appeal or a post-trial motion have been filed; (3) [n]inety days after denial of a post-trial motion
or receipt of the mandate of the appellate court affirming a conviction, unless a petition for writ of certiorari
has been filed with the United States Supreme Court; (4) [t]wenty-five days after a denial of certiorari or
the mandate of the United States Supreme Court affirming a conviction, unless a petition for rehearing has
been filed; (5) [r]eceipt of a denial by the United States Supreme Court of a petition for rehearing; (6) [o]ne
year after exhaustion of all state remedies if no petition for habeas corpus is filed or after the exhaustion of
all federal remedies if a petition for a writ of habeas corpus has been filed. ARIZ. R. CRIM. P. 28.1(b).
14
ARIZ. R. CRIM. P. 28.2(d).
15
Id.
16
ARIZ. R. CRIM. P. 28.2(e).
17
Id.
18
Id.
19
ARIZ. R. CRIM. P. 28.2(f).
20
ARIZ. R. CRIM. P. 28.2(g).

47

Arizona Supreme Court has held that the State has “a duty, in the interest of justice, to act
in a timely manner to ensure the preservation of evidence it is aware of[,] where that
evidence is obviously material and reasonably within its grasp.” 21 If, before or during
trial, the State “destroyed, caused to be destroyed, or allowed to be destroyed any
evidence whose contents or quality are in issue” 22 and the defendant can show s/he was
prejudiced by this act, 23 the judge should provide a Willits 24 instruction to the jury
explaining that it “may infer that the true fact is against [the State’s] interest.” 25
In addition, the court may order the preservation of some biological evidence in order to
replicate a post-conviction DNA test. 26 If the defendant files a petition for postconviction DNA testing, the State must preserve for the entirety of the proceeding all
evidence in its possession or control that could be subject to DNA testing. 27
1. Law Enforcement Procedures for the Pre-Trial Preservation of Evidence
All police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Arizona that are
certified by the Commission on Accreditation for Law Enforcement Agencies, Inc.
(CALEA) 28 are required to adopt written directives establishing procedures to be used in
criminal investigations, including procedures on the collection, preservation, and use of
physical evidence. 29 CALEA further requires a written directive establishing guidelines
and procedures for collecting, processing, and preserving physical evidence in the field. 30
In addition to the requirements for law enforcement agency certification, individual law
enforcement officers (peace officers 31 ) are statutorily required to meet certain criteria 32
21

State v. Perez, 687 P.2d 1214, 1218-19 (Ariz. 1984) (en banc).
Id. at 1216.
23
Id. at 1219.
24
State v. Willits, 393 P.2d 274 (Ariz. 1964) (en banc).
25
Perez, 687 P.2d at 1216.
26
ARIZ. REV. STAT. § 13-4240(I)(3) (2005).
27
ARIZ. REV. STAT. § 13-4240(H) (2005).
28
Eighteen police departments, university/college law enforcement agencies, and county attorney office
investigation divisions have been accredited or are in the process of obtaining accreditation by CALEA.
See CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited on
June 12, 2006) (use second search function, designating “U.S.” and “Arizona” as search criteria). See also
CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited on
June 12, 2006) (noting that CALEA is an independent accrediting authority established by the four major
law enforcement membership associations in the United States: the International Association of Chiefs of
Police (IACP); National Organization of Black Law Enforcement Executives (NOBLE); National Sheriffs'
Association (NSA); and Police Executive Research Forum (PERF)). The accreditation process consists of
five phases: (1) application; (2) self-assessment; (3) on-site assessment; (4) commission review; and (5)
maintaining compliance and reaccreditation. See CALEA Online, The Accreditation Process, at
http://www.calea.org/newweb/accreditation%20Info/process1.htm (last visited on June 12, 2006).
29
COMM’N ON ACCREDITATION OF LAW ENFORCEMENT AGENCIES, INC., STANDARDS FOR LAW
ENFORCEMENT AGENCIES 42-2 (4th ed. 2001) (Standard 42.2.1) [hereinafter CALEA STANDARDS].
30
Id. at 83-1(Standard 83.2.1).
31
“Peace officers” are defined, as "sheriffs of counties, constables, marshals, policemen of cities and
towns, commissioned personnel of the [D]epartment of [P]ublic [S]afety, personnel who are employed by
the [S]tate [D]epartment of [C]orrections and the [D]epartment of [J]uvenile [C]orrrections who have
received a certificate from the Arizona [P]eace [O]fficer [S]tandards and [T]raining [B]oard, peace officers
who are appointed by a multicounty water conservation district and who have received a certificate from
22

48

and complete a basic course of training. 33 The basic training requirements course for
full-authority peace officers 34 consists of 585 hours of training, including instruction in
such relevant areas as crime scene management and death investigations. 35 Specifically,
the course provides training regarding preliminary investigation and crime scene
management, crime scene investigation, and physical evidence procedures. 36
Lastly, all laboratories in Arizona that are accredited by the Crime Laboratory
Accreditation Program of the American Society of Crime Laboratory
Directions/Laboratory Accreditation Board (ASCLD/LAB) are required to adopt or abide
by certain procedures relating to the preservation of evidence. 37 For example, the
the Arizona [P]eace [O]fficer [S]tandards and [T]raining [B]oard, police officers who are appointed by
community college district governing boards and who have received a certificate from the Arizona [P]eace
[O]fficer [S]tandards and [T]raining [B]oard, police officers who are appointed by the Arizona [B]oard of
[R]egents and who have received a certificate from the Arizona [P]eace [O]fficer [S]tandards and
[T]raining [B]oard and police officers who are appointed by the governing body of a public airport
pursuant to § 28-8426 and who have received a certificate from the Arizona [P]eace [O]fficer [S]tandards
and [T]raining [B]oard. See 2006 Ariz. Leg. Serv. Ch. 245 (H.B. 2793) (West).
32
See ARIZ. REV. STAT. § 41-1822(A)(3) (2005). In addition, one must (1) be a United States citizen; (2)
be at least twenty-one years of age, except that a person may attend an academy if the person will be
twenty-one before graduating; (3) be a high school graduate or have successfully completed a General
Equivalency Development examination; (4) undergo a complete background investigation; (5) undergo a
medical examination; (6) not have been convicted of a felony or any offense that would be a felony if
committed in Arizona; (7) not have been dishonorably discharged from the U.S. Armed Forces; (8) not
have been previously denied certified status, have certified status revoked, or have current certified status
suspended; (9) not have illegally sold, produced, cultivated, or transported marijuana for sale; (10) not have
illegally used marijuana for any purpose within the past three years; (11) not have ever illegally used
marijuana other than for experimentation; (12) not have ever illegally used marijuana while employed or
appointed as a peace officer; (13) not have illegally sold, produced, cultivated, or transported for sale any
dangerous drug or narcotic, other than marijuana; (14) not have illegally used a dangerous drug or narcotic,
other than marijuana, for any purpose within the past seven years; (15) not have ever illegally used a
dangerous drug or narcotic other than for experimentation; (16) not have ever illegally used a dangerous
drug or narcotic while employed or appointed as a peace officer; (17) not have a pattern of abuse of
prescription medication; (18) undergo a polygraph examination; (19) not have been convicted of or
adjudged to have violated traffic regulations governing the movement of vehicles with a frequency within
the past three years that indicates a disrespect for traffic laws or a disregard for the safety of other persons
on the highway; and (20) read the code of ethics and affirm by signature the person’s understanding and
agreement to abide by the code. See ARIZ. ADMIN. CODE R13-4-105(A)(1)-(20) (2006).
33
ARIZ. ADMIN. CODE R13-4-110(A) (2006).
34
A “full-authority peace officer” is a “peace officer whose authority to enforce the laws of [Arizona] is
not limited” by this chapter of the Arizona Administrative Code. See ARIZ. ADMIN. CODE R13-4-101
(2006). The other peace officer categories are a “specialty peace officer” (“a peace officer whose authority
is limited to enforcing specific sections of the Arizona Revised Statutes or Arizona Administrative Code, as
specified by the appointing agency’s statutory powers and duties”), a “limited-authority peace officer” (“a
peace officer who is certified to perform the duties of a peace officer only in the presence and under the
supervision of a full-authority peace officer”), and a “limited correctional peace officer” (“a peace officer
who has authority to perform the duties of a peace officer only while employed by and on duty with the
Arizona Department of Corrections, and only for the purposes of guarding, transporting, or pursuing
persons under the jurisdiction of the Arizona Department of Corrections”). See ARIZ. ADMIN. CODE R134-101; 13-4-103(D)(2)-(4) (2006).
35
ARIZ. ADMIN. CODE R13-4-116(E)(1)(e) (2006).
36
Id.
37
Eight Arizona laboratories are currently accredited through the ASCLD/LAB program, including the
(1) Arizona Department of Public Safety, Central Regional Laboratory; (2) Arizona Department of Public
Safety, Northern Regional Laboratory; (3) Arizona Department of Public Safety, Western Regional
Laboratory; (4) Arizona Department of Public Safety, Southern Regional Laboratory; (5) Mesa Police

49

ASCLD/LAB specifically requires each crime laboratory to have a written or secure
electronic chain of custody record with all necessary data, which provides for the
complete tracking of all evidence, and to have a secure area for overnight and/or longterm storage of evidence. 38 All evidence must also be marked for identification, stored
under proper seal, meaning that the contents cannot readily escape, and protected from
loss, cross-transfer, contamination and/or deleterious change. 39
2. Court Procedures for Preservation of Evidence During and After Trial
In capital cases, the clerk of the superior court is obligated to retain permanently the
entire case file, including all original documents and evidence filed with the court. 40
B. Post-Conviction DNA Testing
Pursuant to section 13-4240 of the Arizona Revised Statutes (A.R.S.), an individual
convicted of and sentenced for a felony offense may request post-conviction DNA testing
of any evidence “that is in the possession or control of the court or the [S]tate, that is
related to the investigation or prosecution that resulted in the judgment of conviction, and
that may contain biological evidence.” 41
The motion requesting post-conviction DNA testing must be filed with the trial court that
entered the inmate’s judgment of conviction. Once a petition has been filed pursuant to
section 13-4240 of the A.R.S., the court must order the State to preserve for the pendency
of the proceedings all evidence in its possession or control that could be subject to DNA
testing. 42 The State must prepare an inventory of the evidence and submit a copy to both
the defense and the court. 43 If evidence is intentionally destroyed after the court orders
its preservation, the court may impose “appropriate” sanctions for a knowing violation,
including criminal contempt. 44
After the prosecutor is given notice of the petition and has an opportunity to respond, the
court must order DNA testing if:
(1)

(2)

A reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA testing;
The evidence is still in existence and is in a condition that allows DNA
testing to be conducted; and

Department Crime Laboratory; (6) Phoenix Police Department, Laboratory Services Bureau; (7) Scottsdale
Police Department Crime Laboratory; and (8) Tucson City-County Crime Laboratory. See Laboratories
Accredited by ASCLS/LAB, American Society of Crime Laboratories Directors, at http://www.ascldlab.org/legacy/aslablegacylaboratories.html#AZ (last visited on June 12, 2006).
38
AM. SOC’Y OF CRIME LABS. DIRS., LAB ACCREDITATION BD., LABORATORY ACCREDITATION BOARD
2003 MANUAL 20-23 (Standards 1.4..1.1; 1.4.1.5) [hereinafter ASCLD/LAB 2003 MANUAL].
39
Id. at 21-22 (Standards 1.4.1.2-4).
40
See supra note 10.
41
ARIZ. REV. STAT. § 13-4240(A) (2005).
42
ARIZ. REV. STAT. § 13-4240(H) (2005).
43
Id.
44
Id.

50

(3)

The evidence was not previously subjected to DNA testing or was not
subjected to the testing that is now requested and may resolve an issue not
previously resolved by the prior testing. 45

After the prosecutor is given notice of the petition and has an opportunity to respond, the
court may order DNA testing if:
(1)

(2)
(3)

A reasonable probability exists that either (a) the petitioner’s verdict or
sentence would have been more favorable if the results of DNA testing
had been available at the trial leading to the judgment of conviction; or (b)
DNA testing will produce exculpatory evidence;
The evidence is still in existence and is in a condition that allows DNA
testing to be conducted; and
The evidence was not previously subjected to DNA testing or was not
subjected to the testing that is now requested and may resolve an issue not
previously resolved by the prior testing. 46

If the court orders DNA testing, the court also must order the production of any
laboratory reports prepared in connection with the testing and may order the production
of any underlying data and laboratory notes. 47 If either party previously subjected the
evidence to DNA testing, the court may order the prosecutor or defense counsel to
provide each party and the court access to the laboratory reports prepared in connection
with the testing and may order the production of the underlying data and laboratory
notes. 48
If the results of the DNA test are not favorable to the petitioner, the court must dismiss
the petition and may make any additional orders that it deems appropriate, including:
(1)
(2)
(3)

Notifying the Board of Executive Clemency or a probation department;
Requesting that the petitioner’s sample be added to the federal combined
DNA index system offender database; and
Providing notification to the victim or his/her family. 49

If the results of the DNA test are favorable to the petitioner and there is no other
provision of law that would bar a hearing as untimely, the court will order a hearing and
make any further required orders. 50
C. Method of and Funding for Post-Conviction DNA Testing
If the defendant is indigent, the court may appoint investigators and expert witnesses that
are “reasonably necessary to adequately present a defense at trial and at any subsequent

45
46
47
48
49
50

ARIZ. REV. STAT. § 13-4240(B)(1)-(3) (2005).
ARIZ. REV. STAT. § 13-4240(C)(1)-(3) (2005).
ARIZ. REV. STAT. § 13-4240(G) (2005).
Id.
ARIZ. REV. STAT. § 13-4240(J) (2005).
ARIZ. REV. STAT. § 13-4240(K) (2005).

51

proceeding.” 51 If the court orders post-conviction DNA testing under section 13-4240(B)
of the A.R.S., the court must order the method and responsibility for payment, if
necessary. 52 If the court orders post-conviction DNA testing under section 13-4240(C) of
the A.R.S., the court may require the petitioner to pay testing costs. 53 The court may
make any other orders it deems appropriate, including:
(1)
(2)
(3)
(4)

Specifying the type of DNA analysis to be used;
Specifying the procedures to be followed during the testing;
Ordering the preservation of some of the sample for replicating the testing;
and
Ordering elimination samples from third parties. 54

D. Location of Post-Conviction DNA Testing
If the judge orders post-conviction DNA testing, the court must select a laboratory that
meets the standards established by the Deoxyribonucleic Acid Advisory Board to conduct
Eight Arizona laboratories are currently accredited through the
the testing. 55
ASCLD/LAB program and consequently meet the standards established by the
Deoxyribonucleic Acid Advisory Board, including the:
1.
2.
3.
4.
5.
6.
7.
8.

Arizona Department of Public Safety, Central Regional Laboratory;
Arizona Department of Public Safety, Northern Regional Laboratory;
Arizona Department of Public Safety, Western Regional Laboratory;
Arizona Department of Public Safety, Southern Regional Laboratory;
Mesa Police Department Crime Laboratory;
Phoenix Police Department, Laboratory Services Bureau;
Scottsdale Police Department Crime Laboratory; and
Tucson City-County Crime Laboratory. 56

51

ARIZ. REV. STAT. § 13-4013(B) (2005).
ARIZ. REV. STAT. § 13-4240(D) (2005).
53
Id.
54
ARIZ. REV. STAT. § 13-4240(I) (2005).
55
ARIZ. REV. STAT. § 13-4240(F) (2005). The 1994 DNA Identification Act (codified, in part, at 42
U.S.C. § 14131(a)(1)) authorized the Federal Bureau of Investigation (F.B.I.) to establish and appoint
individuals to a DNA advisory board, charged with creating standards of quality assurance for DNA
testing. The “Quality Assurance Standards for Forensic DNA Testing Laboratories” became effective on
October 1, 1998. See DNA Advisory Board, Quality Assurance Standards for Forensic DNA Testing
SCI.
COMM.
3
(July
2000),
available
at
Laboratories,
2
FORENSICS
http://www.fbi.gov/hq/lab/fsc/backissu/july2000/codis2a.htm (last visited on Jun. 12, 2006). The DNA
Advisory Board disbanded in 2000, but the F.B.I. and ASCLD/LAB have formally agreed upon a joint use
of the audit document. See Quality Assurance Audit for Forensic DNA and Convicted Offender DNA
Databasing Laboratories, 3 FORENSICS SCI. COMM. 1 (Jan. 2001), available at
http://www.fbi.gov/hq/lab/fsc/bakissu/jan2001/dnaaudit.htm (last visited on June 12, 2006); Karen
Cormier, Lisa Calandro, and Dennis Redder, Evolution of the Quality Assurance Documents for DNA
Laboratories, FORENSIC MAGAZINE, available at http://www.forensicmag.com/articles.asp?pid=30 (last
visited June 12, 2006).
56
See supra note 37.
52

52

For a detailed discussion of Arizona’s crime laboratories and the ASCLD/LAB
accreditation program, see the Crime Laboratories and Medical Examiner Offices
Chapter.

53

II. ANALYSIS
A. Recommendation #1
Preserve all biological evidence 57 for as long as the defendant remains
incarcerated.

While the State of Arizona has “a duty, in the interest of justice, to act in a timely manner
to ensure the preservation of evidence it is aware of[,] where that evidence is obviously
material and reasonably within its grasp,” 58 there is no statewide requirement that all
biological evidence be preserved for as long as the defendant remains incarcerated.
Prosecutors and law enforcement agencies are allowed– and in some circumstances,
compelled– to dispose of items that were seized or otherwise obtained for use in a
criminal prosecution. 59 A prosecutor or law enforcement agency generally must dispose
of any item within thirty days after the case is no longer “subject to modification.” 60
While the statute broadly defines “subject to modification” to include all judicial outlets
for relief, there is no requirement that biological evidence be preserved through the
clemency process and up until execution. Despite this, the Trial Issues Subcommittee of
the Arizona Capital Case Commission reported in December 2002 that Arizona law
enforcement officials retained evidence in all capital cases indefinitely. 61
Notably, in capital cases, the clerk of the superior court is required to permanently retain
the entire case file, which includes all original documents and evidence filed with the
court. 62 While the clerk is not mandated to retain all biological evidence; s/he is required
to retain all biological evidence filed with the court for as long as the defendant remains
incarcerated. 63
Lastly, if the defendant files a petition for post-conviction DNA testing, the State must
preserve throughout the entire proceeding all evidence in its possession or control that
could be subject to DNA testing 64 and, in addition, the court may order the preservation
of some available biological evidence to replicate post-conviction DNA testing. 65

57

“Biological evidence” includes: (1) the contents of a sexual assault examination kit; and/or (2) any
item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether
that material is catalogued separately or is present on other evidence. See INNOCENCE PROJECT, MODEL
STATUTE
FOR
OBTAINING
POST-CONVICTION
DNA
TESTING,
available
at
http://www.innocenceproject.org/legislation/index.php (last visited on May 22, 2006).
58
State v. Perez, 687 P.2d 1214, 1218-19 (Ariz. 1984) (en banc).
59
ARIZ. R. CRIM. P. 28.2(a), (b).
60
See supra note 13.
61
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT 24-25 (2002). It is
unclear what the term “indefinite” means in this circumstance.
62
ARIZ. CODE OF JUD. ADMIN. §3-402(A), (C)(1)(b)(2) (2006). Under the Code, “case file” is defined as
“the original documents or other material, regardless of physical form filed in an action or proceeding in a
court, either in paper or electronic format.” ARIZ. CODE OF JUD. ADMIN. §3-402(A) (2006).
63
See ARIZ. CODE OF JUD. ADMIN. §3-402(A), (C)(1)(b)(2) (2006).
64
ARIZ. REV. STAT. § 13-4240(H) (2005).
65
ARIZ. REV. STAT. § 13-4240(I)(3) (2005).

54

Because there is no statutory requirement that all biological evidence be preserved
through the entire legal process, the Arizona Capital Case Commission (Commission)
recommended that legislation be enacted to require the preservation of all biological
materials in capital cases until a defendant has an opportunity to request DNA testing of
that evidence. 66 Notwithstanding resource concerns, the Attorney General’s Law
Enforcement Advisory Board did not oppose this recommendation. 67 The Commission
reported that it planned to recommend this course of action to the Arizona Criminal
Justice Commission. 68 It is unclear whether this recommendation was ever made, but no
statute regarding the preservation of biological evidence has been enacted since the
Commission’s report was released in December of 2002.
Arizona, through a number of statutes and rules, appears to require the preservation of
biological evidence while state and federal judicial remedies are still available and the
preservation of all biological evidence filed with the court. However, Arizona law does
not mandate the preservation of all biological evidence for the entire duration of a capital
defendant’s incarceration. Accordingly, the State of Arizona is only in partial
compliance with Recommendation #1.
B. Recommendation #2
All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and
convicted persons may seek appropriate relief notwithstanding any other
provision of the law.

The State of Arizona provides an avenue for defendants to obtain physical evidence for
DNA testing during pre-trial discovery and for inmates to seek post-conviction DNA
testing.
The prosecutor, unless otherwise ordered by the court or provided by local rule, must
make available at the arraignment or preliminary hearing to any defendant in a felony
case (1) all original and supplemental reports prepared by a law enforcement agency in
connection with the defendant’s alleged offense; and (2) the names and addresses of
experts who personally examined the defendant or any evidence in the particular case,
together with the results of physical examinations and of scientific tests, experiments, or
comparisons that have been completed. 69 The prosecutor has a supplemental duty to
disclose material within the prosecutor’s possession or control. 70 Again, unless otherwise

66

CAPITAL CASE COMMISSION, supra note 61.
Id. at 25.
68
Id.
69
ARIZ. R. CRIM. P. 15.1(a), (b)(3),(4).
70
See ARIZ. R. CRIM. P. 15.1(b). “Except as provided by Rule 39(b), the prosecutor shall make available
to the defendant the following material and information within the prosecutor's possession or control:
(1) The names and addresses of all persons whom the prosecutor intends to call as witnesses in the
case-in-chief together with their relevant written or recorded statements,
(2) All statements of the defendant and of any person who will be tried with the defendant,
(3) All then existing original and supplemental reports prepared by a law enforcement agency in
connection with the particular crime with which the defendant is charged,
67

55

ordered by the court, the prosecutor must make available to the defendant for
examination, testing, and reproduction within thirty days of a written request “a list of all
papers, documents, photographs, or tangible objects that the prosecutor intends to use at
trial or which were obtained from or purportedly belong to the defendant,” along with
any completed written reports, statements and examination notes made by the prosecution
experts. 71 Based on this rule, it appears that all biological evidence is made available to a
defendant pre-trial.
Additionally, Arizona law, pursuant to section 13-4240 of the A.R.S., authorizes certain
inmates to move the court for and/or obtain a post-conviction order for DNA testing.
Under the post-conviction DNA statute, a “person who was convicted and sentenced for a
felony offense and who meets the [statutory] requirements. . . may request [DNA] testing
of any evidence that is in the possession or control of the court or the [S]tate, that is
related to the investigation or prosecution that resulted in the judgment of conviction, and
that may contain biological evidence” at any time. 72
Based on this information, the State of Arizona is in partial compliance with
Recommendation #2.
C. Recommendation #3
Every law enforcement agency should establish and enforce written
procedures and policies governing the preservation of biological evidence.

Arizona law does not require law enforcement agencies to establish and/or enforce
written procedures and policies governing the preservation of biological evidence. It
appears, however, that, in practice, law enforcement agencies may preserve biological
evidence in capital cases indefinitely. 73 In addition, individual peace officers are
required to receive basic training regarding preliminary investigation and crime scene
management, crime scene investigation, and physical evidence procedures 74 and many

(4) The names and addresses of experts who have personally examined a defendant or any evidence in
the particular case, together with the results of physical examinations and of scientific tests,
experiments or comparisons that have been completed,
(5) A list of all papers, documents, photographs or tangible objects that the prosecutor intends to use at
trial or which were obtained from or purportedly belong to the defendant,
(6) A list of all prior felony convictions of the defendant which the prosecutor intends to use at trial,
(7) A list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent,
or knowledge or otherwise use at trial[,]
(8) All then existing material or information which tends to mitigate or negate the defendant's guilt as
to the offense charged, or which would tend to reduce the defendant's punishment therefor[,]
(9) Whether there has been any electronic surveillance of any conversations to which the defendant
was a party, or of the defendant's business or residence[,]
(10) Whether a search warrant has been executed in connection with the case[,]
(11) Whether the case has involved an informant, and, if so, the informant's identity, if the defendant is
entitled to know either or both of these facts under Rule 15.4(b)(2).”
Id.
71
72
73
74

ARIZ. R. CRIM. P. 15.1(e).
ARIZ. REV. STAT. § 13-4240(A) (2005).
CAPITAL CASE COMMISSION, supra note 61.
See ARIZ. ADMIN. CODE R13-4-110; R13-4-116(E)(1)(e)(i)-(iii) (2006).

56

Arizona crime laboratories have established or adopted procedures pertaining to the
preservation of biological evidence in order to obtain CALEA accreditation.
CALEA requires certified law enforcement agencies to adopt a written directive
establishing procedures to be used in criminal investigations, including procedures on the
collection, preservation, and use of physical evidence. 75 Similarly, all of Arizona’s crime
laboratories accredited by the ASCLD/LAB are required to adopt specific procedures
relating to the preservation of evidence. 76
Although it appears that certified law enforcement agencies in Arizona have adopted
procedures on the preservation of evidence, we were unable to confirm the existence of
these procedures or obtain sufficient information to assess whether the procedures
adopted by these agencies and crime laboratories as well as other Arizona law
enforcement agencies and crime laboratories comply with Recommendation #3.
D. Recommendation #4
Every law enforcement agency should provide training programs and
disciplinary procedures to ensure that investigative personnel are prepared
and accountable for their performance.

Arizona law mandates that every law enforcement officer complete a basic training
course, 77 which includes instruction on preliminary investigation and crime scene
management, crime scene investigation, and physical evidence procedures. 78
Arizona law enforcement agencies certified under CALEA also are required to establish
written directives requiring a training program 79 and an annual, documented performance
evaluation of each employee. 80
According to the 2004 Department of Public Safety Annual Report, the Criminal Justice
Support Division “[p]rovides instruction to investigative officers in the proper
identification, collection, and packaging of evidence.” 81 Similarly, all Arizona crime
laboratories accredited by ASCLD/LAB are required to create training programs relevant
to the tasks required of the laboratory personnel. 82 The content of these training
programs is unknown.
Based on this information, it appears that law enforcement investigative personnel in
Arizona receive mandatory basic training on the preservation of evidence. Furthermore,
certified law enforcement agencies and crime laboratories may have training programs
and/or disciplinary procedures. However, the extent to which the basic training courses,
75

CALEA STANDARDS, supra note 29, at 42-2 (Standard 42.2.1).
ASCLD/LAB 2003 Manual, supra note 38, at 1, 20-23.
77
ARIZ. ADMIN. CODE R13-4-110 (2006).
78
ARIZ. ADMIN. CODE R13-4-116(E)(1)(e)(i)-(iii) (2006).
79
CALEA STANDARDS, supra note 29, at 33-3 to 33-4 (Standards 33.4.1, 33.4.2).
80
Id. at 35-1 (Standard 35.1.2).
81
2004
ARIZ.
DEP’T
OF
PUBLIC
SAFETY
ANN.
REP.
available
http://www.azdps.gov/reports/annualreport/AzDpsArFy2004.pdf (last visited on June 13, 2006).
82
ASCLD/LAB 2003 Manual, supra note 38, at 19 (Standard 1.3.3.1).
76

57

at

certification programs, and standard operating procedures comply with Recommendation
#4 by ensuring that investigative personnel are prepared and accountable for their
performances is unknown. Arizona, therefore, is only in partial compliance with
Recommendation #4.
E. Recommendation #5
Ensure that there is adequate opportunity for citizens and investigative
personnel to report misconduct in investigations.

Police departments, sheriff’s departments, state law enforcement agencies, transportation
police departments, and university police departments in Arizona certified under CALEA
are required to establish written directives requiring written investigative procedures for
all complaints against the agency and/or its employees. 83 It appears, therefore, that
certified law enforcement agencies may have adopted written directives governing
complaints against the agency and/or its employees, but the extent to which these
procedures comply with Recommendation #5 is unknown.
F. Recommendation #6
Provide adequate funding to ensure the proper preservation and testing of
biological evidence.

The amount of funding dedicated to the preservation and testing of biological evidence is
unknown, rendering it impossible to assess its adequacy.
It appears that the costs associated with storing evidence may be absorbed by the agency
designated by the court to store the evidence. The court also has discretion to determine
whether the inmate or the State is responsible for the costs of post-conviction DNA
testing. 84 If the court orders testing pursuant to section 13-4240(B) of the A.R.S., the
court will order the method and responsibility for payment, if needed. 85 The language of
the statute is unclear as to whether the court can require the defendant to pay some or all
of the costs in this circumstance, however. If the court orders DNA testing pursuant to
section 13-4240(C) of the A.R.S., the court may require the petitioner to pay the
associated costs. 86 The language of the statute again is unclear as to the exact meaning of
this provision and whether the court must order the method of payment in this
circumstance or whether it is within the court’s discretion to stipulate the method of
payment.
It also appears that there has been a funding shortfall that has made the timely testing of
DNA evidence difficult, if not impossible. As of January 1, 2004, all felons were
required to submit DNA samples within thirty days of their sentencing. 87 Because of
83

CALEA STANDARDS, supra note 29 at 52-1 (Standard 52.1.1).
See ARIZ. REV. STAT. § 13-4240(D) (2005).
85
Id.
86
Id.
87
See Judi Villa, DNA samples taxing Arizona, THE ARIZ. REP., May 10, 2004, available at
http://www.azcentral.com/specials/special21/articles/0510DNA10.html (last visited June 12, 2006).
84

58

state budget cuts, however, the Arizona Department of Public Safety received only $1.6
million during the 2003 and 2004 fiscal years to fund DNA testing, despite an initial
legislative appropriation of $2 million a year. 88 As a result, the Department of Public
Safety had only enough funds to purchase collection kits, hire some necessary staff, and
preserve and store the DNA samples. 89 As of May 2004, approximately 60,000 samples
were waiting to be analyzed. 90 Full funding was supposed to be restored on July 1,
2004, 91 and Arizona received an additional $1.3 million in September 2004 from the
federal government “to eliminate casework and the convicted offender backlog[,]
improve crime lab capacity[,] provide DNA training[,] provide for post-conviction DNA
testing[,] and conduct testing to identify missing persons.” 92 Despite this additional
money, it was estimated that between two and ten years may be needed for crime-lab
technicians to process the backlog and keep pace with new samples arriving for
processing. 93 We were unable to confirm whether the State of Arizona has since been
able to eliminate this backlog, however.
Even though it appears that we know which agency or party may be responsible for
absorbing the costs associated with storing and testing DNA evidence, and that the State
has a significant backlog in processing DNA samples, we are unable to assess whether
the State of Arizona provides adequate funding to ensure the proper preservation and
testing of DNA evidence.

88

Id.
Id.
90
Id.
91
Id.
92
Press Release, United States Department of Justice Office of Justice Programs, Department of Justice
Awards $2.5 Million to Arizona for President’s DNA Initiative and Crime-Solving Forensic Services (Sept.
21, 2004).
93
See supra note 87.
89

59

60

CHAPTER THREE
LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS
INTRODUCTION TO THE ISSUE
Eyewitness misidentification and false confessions are two of the leading causes of
wrongful convictions. Between 1983 and 2003, approximately 199 previously convicted
“murderers” were exonerated nationwide. 1 In about 50% of these cases, there was at
least one eyewitness misidentification, and 21% involved false confessions. 2
Lineups and Showups
Numerous studies have shown that the manner in which lineups and showups are
conducted affects the accuracy of eyewitness identification. To avoid misidentification,
the lineup should include foils who resemble the suspect, and the administering officer
should be unaware of the suspect’s identity. Caution in administering lineups and showups is especially important because flaws can easily taint later lineup and at-trial
identifications. 3
Law enforcement agencies should consider using a sequential lineup or photospread,
rather than presenting everyone to the witness simultaneously. 4 In the sequential
approach, the witness views one person at a time and is unaware of the number of
individuals s/he will see. 5 As each person is presented, the eyewitness states whether or
not that person is the perpetrator. 6 Once an identification is made in a sequential
procedure, the procedure stops. 7 The witness thus is encouraged to compare the features
of each person viewed to the witness’ recollection of the perpetrator rather than
comparing the faces of the various people in the lineup or photospread to one another in a
quest for the “best match.”
Law enforcement agencies also should videotape or digitally record identification
procedures, including the witness’ statement regarding his/her degree of confidence in the
identification. In the absence of a videotape or digital recorder, law enforcement
agencies should photograph and prepare a detailed report of the identification procedure.
Audio or Videotaping of Custodial Interrogations
Electronically recording interrogations from their outset– not just from when the suspect
has agreed to confess– can help avoid erroneous convictions. Complete recording is on
1

See Samuel R. Gross et al., Exonerations in the United States, 1989 through 2003 (2004), available at
http://www.law.umich.edu/NewsAndInfo/exonerations-in-us.pdf (last visited on May 22, 2006).
2
See id.
3
See BRYAN CUTLER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT’S WITNESSES 13-17,
42-44 (2002).
4
Id. at 39.
5
Id.
6
Id.
7
Id.

61

the increase in this country and around the world. Those police departments who make
complete recordings have found the practice beneficial to law enforcement. 8
Complete recordings may avert controversies about what occurred during an
interrogation, deter law enforcement officers from using dangerous and/or prohibited
interrogation tactics, and provide courts with the ability to review the interrogation and
the confession.

8

See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J.
CRIM. L. & CRIMINOLOGY 1127 (2005).

62

I. FACTUAL DISCUSSION
The State of Arizona does not require law enforcement agencies to adopt special
procedures on identifications and interrogations. However, it does require all law
enforcement officials to take a basic training course, regulated by the Arizona Peace
Officer Standards and Training Board. This Section will discuss the requirements of the
basic training course, along with the standards that law enforcement agencies must
comply with to obtain certification by the Commission on Accreditation for Law
Enforcement Agencies (CALEA). Lastly, given that Arizona case law governs all pretrial identifications and interrogations, this Section also will discuss judicial
determinations regarding the propriety of certain law enforcement actions.
A. Arizona Peace Officer Standards and Training Board
The Arizona Peace Officer Standards and Training Board (POST Board) is the regulatory
body authorized by the legislature to, among other things: (1) prescribe reasonable
minimum qualifications for officers to be appointed to enforce the laws of Arizona and its
political subdivisions and certify officers in compliance with the qualifications; (2)
prescribe minimum courses of training and minimum standards for law enforcement
training facilities; (3) recommend curricula for advanced courses and seminars in law
enforcement and intelligence training in universities, colleges, and community colleges;
(4) make inquiries to determine whether the State or its political subdivisions are
adhering to the standards for recruitment, appointment, retention, and training; and (5)
make recommendations on all matters relating to law enforcement and public safety. 9
A “peace officer” is defined, for the purposes of this Section, as "sheriffs of counties,
constables, marshals, policemen of cities and towns, police officers who are appointed by
community college district governing boards and who have received a certificate from the
[Post Board],” and “police officers who are appointed by the Arizona [B]oard of
[R]egents and who have received a certificate from the [Post Board].” 10 To obtain
9

ARIZ. REV. STAT. § 41-1822(A) (2005). The POST Board consists of thirteen members appointed by
the Governor. ARIZ. REV. STAT. § 41-1821(A) (2005).
10
2006 Ariz. Leg. Serv. Ch. 245 (H.B. 2793) (approved May 2006). There are other law enforcement
officials included in the definition of a “peace officer” that are not relevant to this discussion. The full
definition of “peace officer” is as follows: "sheriffs of counties, constables, marshals, policemen of cities
and towns, commissioned personnel of the department of public safety, personnel who are employed by the
state department of corrections and the department of juvenile corrections who have received a certificate
from the Arizona peace officer standards and training board, peace officers who are appointed by a
multicounty water conservation district and who have received a certificate from the Arizona peace officer
standards and training board, police officers who are appointed by community college district governing
boards and who have received a certificate from the Arizona peace officer standards and training board,
police officers who are appointed by the Arizona board of regents and who have received a certificate from
the Arizona peace officer standards and training board and police officers who are appointed by the
governing body of a public airport pursuant to § 28-8426 and who have received a certificate from the
Arizona peace officer standards and training board. In addition, Arizona has several categories of peace
officers. A “full-authority peace officer” is a “peace officer whose authority to enforce the laws of
[Arizona] is not limited” by this chapter of the Arizona Administrative Code. See 2006 Ariz. Leg. Serv.
Ch. 245 (H.B. 2793). The other peace officer categories are “specialty peace officer” (“a peace officer
whose authority is limited to enforcing specific sections of the Arizona Revised Statutes or Arizona
Administrative Code, as specified by the appointing agency’s statutory powers and duties.”), “limitedauthority peace officer” (“a peace officer who is certified to perform the duties of a peace officer only in

63

certification as a peace officer, one normally must satisfy the minimum qualifications 11
and complete the training requirements 12 at an academy that meets the standards
prescribed by the POST Board. 13 The POST Board may waive the training requirement
for a person whose certified status has lapsed or a person who has functioned in the
capacity of a peace officer in another state or a federal law enforcement agency, who the
POST Board determines does not jeopardize the public welfare and safety, and whose
certification serves the best interests of the law enforcement profession. 14 Sheriffs,
elected officials in Arizona, are not required to obtain certified status. 15
The POST Board provides law enforcement academies with a mandatory curriculum
outline for the basic training course, which consists of 585 hours of instruction, including
training on interviewing and questioning. 16 In addition, peace officers are required to
complete eight hours of continuing training each year. Continuing training courses
include advanced or remedial instruction in one or more of the areas covered in the basic
training course. 17

the presence and under the supervision of a full-authority peace officer”), and “limited correctional peace
officer” (“a peace officer who has authority to perform the duties of a peace officer only while employed
by and on duty with the Arizona Department of Corrections, and only for the purposes of guarding,
transporting, or pursuing persons under the jurisdiction of the Arizona Department of Corrections.”). See
ARIZ. ADMIN. CODE R13-4-101, 13-4-103 (2002).
11
See ARIZ. ADMIN. CODE R13-4-105 (2003). A peace officer must (1) be a United States citizen; (2) be
at least twenty-one years of age, except that a person may attend an academy if the person will be twentyone before graduating; (3) be a high school graduate or have successfully completed a General Equivalency
Development examination; (4) undergo a complete background investigation; (5) undergo a medical
examination; (6) not have been convicted of a felony or any offense that would be a felony if committed in
Arizona; (7) not have been dishonorably discharged from the U.S. Armed Forces; (8) not have been
previously denied certified status, have certified status revoked, or have current certified status suspended;
(9) not have illegally sold, produced, cultivated, or transported marijuana for sale; (10) not have illegally
used marijuana for any purpose within the past three years; (11) not have illegally used marijuana other
than for experimentation; (12) not have ever illegally used marijuana while employed or appointed as a
peace officer; (13) not have illegally sold, produced, cultivated, or transported for sale any dangerous drug
or narcotic, other than marijuana; (14) not have illegally used a dangerous drug or narcotic, other than
marijuana, for any purpose within the past seven years; (15) not have ever illegally used a dangerous drug
or narcotic other than for experimentation; (16) not have ever illegally used a dangerous drug or narcotic
while employed or appointed as a peace officer; (17) not have a pattern of abuse of prescription medication;
(18) undergo a polygraph examination; (19) not have been convicted of or adjudged to have violated traffic
regulations governing the movement of vehicles with a frequency within the past three years that indicates
a disrespect for traffic laws or a disregard for the safety of other persons on the highway; and (20) read the
code of ethics and affirm by signature the person’s understanding and agreement to abide by the code. Id.
12
ARIZ. ADMIN. CODE R13-4-110 (2003).
13
ARIZ. ADMIN. CODE R13-4-116 (2003).
14
ARIZ. ADMIN. CODE R13-4-103(F), R13-4-110(D) (2003).
15
ARIZ. ADMIN. CODE R13-4-103(B) (2003).
16
ARIZ. ADMIN. CODE R13-4-116(E) (2003). The curriculum outline for this training course is required
to be taught at POST Board-certified training academies. Based on the curriculum outline, this basic
training course does not appear to include any instruction on conducting pre-trial identification procedures.
See id.
17
ARIZ. ADMIN. CODE R13-4-111(A) (2003). In addition, peace officers below the first level supervisory
position within the peace officer’s appointing agency must complete eight hours of proficiency training
every three years. Proficiency training is training that requires the physical demonstration of one or more
performance objectives included in the basic training course and also requires the demonstration of the use
of judgment in the application of that physical act. Peace officers who are authorized to carry firearms also

64

B. Selected Arizona Law Enforcement Operations Manuals
Because individual law enforcement agencies create, maintain, and update their own
operations manuals, we are unable to draw conclusions as to how law enforcement
agencies across the state handle particular issues. We did obtain the relevant portions of
operations manuals from the Pinal County Sheriff’s Office, the Phoenix Police
Department, the Tucson Police Department, and the Yavapai County Sheriff’s Office,
however. While these four operational manuals help in determining what regulations, if
any, specific law enforcement agencies have adopted in regards to lineups, photo arrays,
showups, and confessions and interrogations, they do not allow us to draw any statewide
conclusions.
1. Lineups
The Phoenix Police Department Operations Orders (Phoenix OO) requires that all lineups
consist of at least four persons, in addition to the suspect, 18 and that lineup participants
have similar physical characteristics and factors, such as age, height, weight, hair length,
hair color, and physical build. 19 Participants’ sex and race also must be the same, except
in unusual cases where these characteristics are hard to determine. 20 The suspect may
choose his/her initial position in the lineup and the position may be changed after each
viewing. 21 Officers are not to say or do anything to distinguish the suspect from other
lineup participants. 22 Photographs or video recordings are to be made of all lineups.23
The Pinal County Sheriff’s Office Manual (PCSO Manual) addresses the various
principles to be used in all sorts of identifications, but does not include rules specific to
lineups.
The Tucson Police Department General Operating Procedures (Tucson GOP) requires
that physical lineups consist of at least six persons, including the suspect. 24 All
participants in physical or photo lineups must have similar physical characteristics; 25 the
participants’ age, height, weight, hair length and color, and physical build all will be
considered relevant factors in this determination. 26 Sex and ethnicity, if obvious, should
be identical. 27 The suspect may choose his/her initial position in the lineup and the
position may be changed after each viewing. 28 Officers must neither say nor do anything
to set a suspect apart from the other lineup participants, or “in any way indicate the

must be reauthorized to carry a firearm once per calendar year. See ARIZ. ADMIN. CODE R13-4-111(B), (C)
(2003).
18
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(1) (1999).
19
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(2)(a) (1999).
20
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(2)(b) (1999).
21
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(3) (1999).
22
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(4) (1999).
23
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(9) (1999).
24
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.1 (2005).
25
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES §§ 2134.1, 2135.1 (2005).
26
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.1 (2005).
27
Id.
28
Id.

65

identity of the suspect.” 29 Photographs or video recordings must be made of all lineup
proceedings. 30
The Yavapai County Sheriff’s Office Manual (YCSO Manual) provides that while
“eyewitness identifications generally do not provide reliable evidence during criminal
investigations,” lineups are allowed and should be conducted using a minimum of six
people who have similar physical characteristics as the suspect. 31 All lineups must be
documented to include the date, time, place, the participants and witnesses’ names, and
the location of the suspects/participants. 32
2. Photo Arrays
The Phoenix OO states that the “use of photographs, composites, and sketches to identify
criminal suspects is permissible only when a live identification procedure is
impractical.” 33 Photographic lineups are to be arranged at random with, if possible, four
or more photographs of different people 34 of “similar general appearance.” 35 The use of
a “mug book” also is allowable when there is no specific suspect, but a “reasonable
number” of photographs must be shown to the witness. 36 Adequate records of each
photograph shown in a display must be made and preserved. 37 Where there is no suspect
and the use of a mug book has been or is likely to be unsuccessful, a non-photographic
pictorial representation may be used. 38
The Pinal County Sheriff’s Office also allows the use of photographs, composites, or
sketches to identify suspects when a live identification procedure is impractical.39 Six
photographs of different individuals, including the suspect, must be used and the
photographs must be arranged at random. 40 Additionally, individuals depicted in a photo
display must be of “similar general appearance,” and no dates may appear on the
photographs. 41
The Tucson GOP states that the use of “photographs, photo books, sketches, or composite
drawings to identify criminal suspects is permissible when a live identification procedure
is impractical or not possible.” 42 Whenever a photograph depicting an identified suspect
is shown to a victim or eyewitness, it must be arranged at random with five or more
photographs of different individuals who are of “substantially similar general
appearance.” 43 In addition, if the photographs are shown sequentially instead of
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43

TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.6 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.7 (2005).
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-1-12 (2001).
Id.
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 10(A) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §§ 9(B)(1), 10(F) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §§10 (G) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 10(H)(1) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 10(I) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 10(J) (2003).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.3 (2002).
Id.
Id.
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES 2133.1 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES 2134.1 (2005).

66

simultaneously, the victim or witness must view the entire series, even if the suspect
already has been identified from the series. Only the face of each subject will be shown;
the shirt, name, and other information on each photograph will be covered. 44 Mug or ID
folders will not be used. If multiple suspects are involved, only one suspect may appear
on each lineup display. If there is a single picture of a lineup that includes the suspect, it
may be shown without any additional photographs. 45
Officers conducting the
photographic lineup must note their initials and payroll numbers on the back of the
photographs, along with the date and time the photos were shown to the victim or
witness. The officer should observe the victim or witness carefully and document any
reactions. If the suspect is identified from the photograph, the officer must note the date
and time of the identification on the back of the suspect’s picture. 46 Adequate records of
each photograph shown in a display must be made, even if a suspect was not identified.
Photos should be preserved so that the display can be reconstructed at trial. Photo books
and group pictures must be accurately described and then preserved. 47
The YCSO simply allows photo lineups to be used and considers between six and eight
photographs to be “reasonable.” 48
3. Showups
The Phoenix OO allows for an identification procedure, called a “confrontation,” in
which “a suspect is presented singularly to the witness.” 49 As a general rule, these
“confrontations” should occur within two hours of the crime. 50
The PCSO Manual also allows for an identification procedure, again termed a
“confrontation,” in which “a suspect is singularly presented to a witness.” A
confrontation may be arranged whenever the suspect is arrested or temporarily detained
within a reasonable time of the offense (usually within two hours), and the witness is
cooperative and states that [s/]he might recognize the person who committed the
offense.” 51
The Tucson GOP allows the police to create “a confrontation between witnesses and an
arrestee, or between witnesses and a suspect, if the suspect/arrestee is detained/arrested
within a short time of the offense (generally within two hours).” 52
The YCSO Manual also has a confrontation procedure, but it is referred to as a “one-onone identification.” The time between offense and identification must be “reasonable,”
defined by the YCSO as between one to three hours from the crime. 53

44
45
46
47
48
49
50
51
52
53

Id.
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES 2134.1 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES 2134.2 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES 2134.3 (2005).
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-1-12 (2001).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 6(A) (1999).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 6(A)(2) (1999).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.2. (2002).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2132 (2005).
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-1-12 (2001).

67

4. Documenting Confessions and Interrogations
The Phoenix OO does not require the recording of interrogations and confessions, but
does require that police officers “document everything said by the suspect.”54 In
addition, “when officers tape record an interrogation or an interview with a suspect,
witness, or victim in the course of an investigation, the tapes will be preserved for trial by
impounding them.” 55
The YCSO Manual suggests that “detailed notes or a recorded tape be made of the
interrogation for court use giving time, date, location, officers present, waiver of rights if
applicable, time interrogation began/ended.” 56
The Tucson GOP and the PSCO Manual do not appear to address the video or audio
taping of interrogations and/or confessions. 57
C. Law Enforcement Accreditation Programs
1. Commission on Accreditation for Law Enforcement Agencies, Inc.
Eighteen 58 police departments, sheriff departments, state law enforcement agencies,
transportation police departments, and university police departments in Arizona have
been accredited or are in the process of obtaining accreditation by the Commission on
Accreditation for Law Enforcement Agencies, Inc. (CALEA), which is an independent
accrediting authority established by the four major law enforcement membership
associations in the United States. 59
To obtain accreditation, a law enforcement agency must complete a comprehensive
process consisting of (1) purchasing an application; (2) executing an Accreditation
Agreement and submitting a completed application; (3) completing an Agency Profile
Questionnaire; (4) completing a thorough self-assessment to determine whether the law
enforcement agency complies with the accreditation standards and developing a plan to
come into compliance; (5) undergoing an on-site assessment by a team selected by the
Commission to determine compliance who, in turn, will submit a compliance report to
the Commission; and (6) participating in a hearing where a final decision on accreditation
is rendered. 60 The CALEA standards are used to “certify various functional components
54

PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §3(C) (1999).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §3(D)(1) (2003).
56
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-13-6 (2002).
57
Despite not requiring the recording of interrogations, both the Tucson GOP and the PSCO are said to
record interrogations and confessions in practice. See Thomas P. Sullivan, Police Experiences with
Recording Custodial Interrogations, 1 Center on Wrongful Convictions Spec. Rep., at A1 (2004).
58
CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited
May 12, 2006) (using second search function and designating “U.S.” and “Arizona” as search criteria).
59
CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited
Nov. 3, 2005) (noting that the Commission was established by the International Association of Chiefs of
Police (IACP), National Organization of Black Law Enforcement Executives (NOBLE), National Sheriffs'
Association (NSA), and Police Executive Research Forum (PERF)).
60
CALEA
Online,
The
Accreditation
Process,
at
http://www.calea.org/newweb/accreditation%20Info/process1.htm (last visited Nov. 3, 2005).
55

68

within a law enforcement agency—Communications, Court Security, Internal Affairs,
Office Administration, Property and Evidence, and Training.” 61 Specifically, CALEA
Standard 42.2.3 requires the creation of a written directive that “establishes steps to be
followed in conducting follow-up investigations . . . [including] identifying and
apprehending suspects.” 62
D. Constitutional Standards Relevant to Identifications
Pre-trial witness identifications, such as those occurring during lineups, showups, and
photo arrays, are governed by the constitutional due process guarantee of a fair trial. 63
The United States Supreme Court has held that a due process violation occurs if, when
the trial court allows testimony concerning pre-trial identification of the defendant, (1)
the identification procedure employed by law enforcement was impermissibly
suggestive, 64 and (2) under the totality of the circumstances, 65 the suggestiveness gave
rise to a very substantial likelihood of irreparable misidentification. 66
A court need only consider whether there was a very substantial likelihood of irreparable
misidentification if it first determines that the pre-trial identification procedures used by
law enforcement officers were unduly suggestive. 67 In determining whether, under the
totality of the circumstances, the use of an impermissibly suggestive pre-trial
identification procedure would lead to a very substantial likelihood of irreparable
misidentification, the court should consider the following factors: “(1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the witness’ degree of
attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level
of certainty demonstrated by the witness at the confrontation, and (5) the length of time
between the crime and the confrontation.” 68 Absent a substantial likelihood of
irreparable misidentification, pre-trial identification evidence is for the jury to weigh,

61

COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, INC., STANDARDS FOR LAW
ENFORCEMENT AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
ACCREDITATION PROGRAM, at v (4th ed. 2001) [hereinafter CALEA STANDARDS].
62
Id. at 42-3 (standard 42.2.3).
63
See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 196-99 (1972);
State v. Prion, 52 P.3d 189 (Ariz. 2002); State v. Lehr, 38 P.3d 1172, 1183 (Ariz. 2002).
64
Neil, 409 U.S. at 196-97. The Arizona Supreme Court phrases this requirement as “whether the
method or procedure used was unduly suggestive.” Lehr, 38 P.3d at 1183.
65
Neil, 409 U.S. at 196 (noting that whether the impermissible suggestiveness of a pre-trial identification
gave rise to a very substantial likelihood of misidentification must be “determined ‘on the totality of the
circumstances’”); State v. Smith, 707 P.2d 289, 294 (Ariz. 1985).
66
The U.S. Supreme Court has stated that, for testimony regarding the pre-trial procedure to be excluded,
its impermissible suggestiveness should give rise to a very substantial likelihood of “irreparable”
misidentification. See, e.g., Neil, 409 U.S. at 196-97; Simmons v. United States, 390 U.S. 377, 384 (1968).
However, the Arizona Supreme Court uses this standard without including the word “irreparable” and
without having provided an explanation for the omission. See, e.g., Lehr, 38 P.3d at 1183. This may best
be explained by a remark in Neil where the U.S. Supreme Court stated that “[w]hile the [very substantial
likelihood of irreparable misidentification] . . . standard . . . determin[es] whether an in-court identification
would be admissible in the wake of a suggestive out-of-court identification, with the deletion of the word
‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-ofcourt identification itself.” Neil, 409 U.S. at 198.
67
See, e.g., Lehr, 38 P.3d at 1183.
68
See, e.g., State v. Alvarez, 701 P.2d 1178 (Ariz. 1985) (quoting Neil, 409 U.S. at 199).

69

even if the procedure was impermissibly suggestive.69 The questions of suggestibility
and reliability are factual questions that are within the trial court’s discretion 70 and are
reviewable under a clear abuse of discretion standard. 71
E. Constitutional Standards and Statutory Law Relevant to Interrogations
In Arizona, courts presume that confessions are involuntary. The State must prove by a
preponderance of the evidence that the defendant confessed “voluntarily and freely.” 72 In
determining voluntariness, the court will “look to the totality of the circumstances
surrounding the confession and determine whether the will of the defendant has been
overborne.” 73 To be voluntary, a confession “must not be induced by threats or promises
of benefit or leniency, no matter how slight.” 74 “Before a statement will be considered
involuntary because of a ‘promise,’ evidence must be established that (1) a promise of
benefit or leniency was in fact made, and (2) the suspect relied on that promise in making
the statement.” 75
Section 13-3988 of the A.R.S. also requires that confessions be voluntary to be
admissible. 76 In determining voluntariness, the trial judge is statutorily mandated to
consider all of the circumstances surrounding the confession, including, but not limited
to:
(1)
(2)

(3)

(4)
(5)

The time elapsing between arrest and arraignment of the defendant making
the confession, if it was made after arrest and before arraignment;
Whether the defendant knew the nature of the offense with which s/he was
charged or of which s/he was suspected at the time of making the
confession;
Whether or not the defendant was advised or knew that s/he was not
required to make any statement and that any such statement could be used
against him/her;
Whether or not the defendant had been advised prior to questioning of
his/her right to the assistance of counsel; and
Whether or not the defendant was without the assistance of counsel when
questioned and when giving the confession. 77

The presence or absence of the factors listed above is not necessarily conclusive of the
issue of voluntariness. 78

69
70
71
72
73
74
75
76
77
78

See State v. Nordstrom, 25 P.3d 717 (Ariz. 2001).
See, e.g., State v. Chapple, 660 P.2d 1208 (Ariz. 1983) (en banc).
State v. Atwood, 832 P.2d 593, 620 (Ariz. 1992).
See, e.g., State v. Doody, 930 P.2d 440, 445 (Ariz. 1997).
Id. (quoting State v. Lopez, 847 P.2d 1078, 1084 (Ariz. 1992)).
Doody, 930 P.2d at 447.
Id. (quoting Lopez, 847 P.2d at 1085).
ARIZ. REV. STAT. § 13-3988(A) (2005).
ARIZ. REV. STAT. § 13-3988(B) (2005).
Id.

70

II. ANALYSIS
A. Recommendation #1
Law enforcement agencies should adopt guidelines for conducting lineups
and photospreads in a manner that maximizes their likely accuracy. Every
set of guidelines should address at least the subjects, and should incorporate
at least the social scientific teachings and best practices, set forth in the
American Bar Association Best Practices for Promoting the Accuracy of
Eyewitness Identification Procedures (which has been reproduced below, in
relevant part and with slight modifications).

Eighteen Arizona law enforcement agencies have been accredited or are in the process of
obtaining CALEA certification. CALEA does not require certified law enforcement
agencies to adopt specific guidelines for conducting lineups and photospreads in a
manner that maximizes their likely accuracy, however. For example, Standard 42.2.3 of
CALEA merely requires law enforcement agencies to create a written directive that
“establishes steps to be followed in conducting follow-up investigations,” including
identifying suspects. Certainly, Arizona law enforcement agencies in compliance with
the CALEA standards could create guidelines for conducting lineups and photospreads
that comply with the American Bar Association Best Practices for Promoting the
Accuracy of Eyewitness Identification Procedures (ABA Best Practices).
While individual law enforcement agencies can and have created specific guidelines that
mirror the requirements of the ABA Best Practices and, in some cases, comply with
Standard 42.2.3 of CALEA, we were unable to obtain sufficient information to ascertain
the extent to which law enforcement agencies statewide, certified or otherwise, are in
compliance with the ABA Best Practices.
In the course of our research, we obtained copies of the operating procedures for the
Phoenix Police Department, Tucson Police Department, Yavapai County Sheriff’s Office,
and Pinal County Sheriff’s Office. Each system has operating procedures that prescribe
specific actions to be taken and avoided by law enforcement officials while conducting
pre-trial identification procedures. Some of these actions are specific and responsive to
the following ABA Best Practices, but some are not. Significantly, the adoption of
relevant standard operating procedures by individual law enforcement agencies is not
mandatory under Arizona law.
Regardless of whether a law enforcement agency has obtained certification or has
adopted
relevant
standard
operating
procedures, all pre-trial
identification
procedures administered by law enforcement agencies ultimately are subject to
constitutional due process limitations.
1. General Guidelines for Administering Lineups and Photospreads
a. The guidelines should require, whenever practicable, the person
who conducts a lineup or photospread and all others present
(except for defense counsel, when his or her presence is

71

constitutionally required) should be unaware of which of the
participants is the suspect.

Numerous law enforcement agencies in Arizona are certified by CALEA, which requires
these agencies to create a written directive that “establishes steps to be followed in
conducting follow-up investigations,” including identifying suspects. 79 Although the
CALEA standards do not specifically require that all those present at a pre-trial
identification be unaware of which participant is the suspect, a law enforcement agency
complying with the CALEA standards certainly could create a guideline that requires all
those present at a lineup to be unaware of which participant is the suspect.
In reviewing the policies of the Phoenix Police Department, Tucson Police Department,
Yavapai County Sheriff’s Office, and Pinal County Sheriff’s Office, none appear to
require those present at a lineup to be unaware of which participant is the suspect. The
two law enforcement agencies that address this issue at all– the Phoenix Police
Department and the Tucson Police Department– do so only obliquely. In the Phoenix
OO, officers are instructed not to say or do anything to distinguish the suspect from other
lineup participants 80 and in the Tucson GOP, officers are told to neither say nor do
anything to set a suspect apart from the other lineup participants, or “in any way indicate
the identity of the suspect.” 81 Both of these regulations, however, insinuate that the
officers know the identity of the suspect and certainly do not require otherwise.
While (1) there are no statewide guidelines for conducting lineups and photospreads, and
(2) none of the four law enforcement agencies whose operating procedures we reviewed
follow this ABA Best Practice, we cannot conclude whether other state law enforcement
agencies, certified by CALEA or otherwise, require that the officer conducting the lineup
or photospread be unaware of the suspect’s identity. We are thus unable to ascertain
whether law enforcement agencies in the State of Arizona are in compliance with this
ABA Best Practice.
b. The guidelines should require that eyewitnesses should be
instructed that the perpetrator may or may not be in the lineup;
that they should not assume that the person administering the
lineup knows who is the suspect; and that they need not identify
anyone, but, if they do so, they will be expected to state in their
own words how certain they are of any identification they make.

The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures instruct eyewitnesses that the perpetrator may or may not
be in the lineup, that they should not assume the official administering the lineup knows
who is the suspect, and that, although they need not identify anyone, the certainty of any
identification must be in their own words. A law enforcement agency complying with
the CALEA standards, requiring the agency to establish steps for identifying suspects,
could certainly create a guideline that complies with this ABA Best Practice. Our review
79
80
81

CALEA STANDARDS, supra note 61, at 42-3 (standard 42.2.3).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(4) (1999).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.6 (2005).

72

of the Phoenix Police Department, Tucson Police Department, Yavapai County Sheriff’s
Office, and Pinal County Sheriff’s Office did not uncover any relevant standard operating
procedures, however.
On the issue of stating that the perpetrator may or may not be in the lineup, the Arizona
Supreme Court, in finding that a lineup was not unduly suggestive, has commented that
“[w]e see no reason why the police should not suggest that they have a man whom they
suspect of being the guilty party. Anyone called to witness a lineup would naturally
assume so. He would hardly be summoned to a lineup if there were no suspect.” 82 As to
whether witnesses must state in their own words the certainty of their identification,
numerous cases in Arizona contain examples of witnesses stating either a percentage or
general level of certainty in their identification.83
Based on Arizona case law and a review of the four law enforcement agency operating
manuals, it appears that those conducting lineups in Arizona are not required to instruct
the witness that the lineup may or may not contain the suspect, and witnesses generally
indicate their level of confidence in their identification. We were, however, unable to
ascertain whether Arizona case law or the relevant CALEA standard requires full
compliance with this ABA Best Practice.
2. Foil Selection, Number, and Presentation Methods
a. The guidelines should require that lineups and photospreads
should use a sufficient number of foils to reasonably reduce the
risk of an eyewitness selecting a suspect by guessing rather than
by recognition.
b. The guidelines should require that foils should be chosen for
their similarity to the witness's description of the perpetrator,
without the suspect's standing out in any way from the foils and
without other factors drawing undue attention to the suspect.

The CALEA standards do not require certified agencies conducting pre-trial
identification procedures to adopt written directives specifically requiring the use of a
sufficient number of foils that are chosen for their similarity with a witness’ description
of the perpetrator in order to reduce the risk of eyewitness guessing.
However, the four law enforcement manuals in our possession touch upon this ABA Best
Practice. While the Pinal County Sheriff’s Office does not appear to have procedures
regulating lineups, it does allow the use of photographs, composites, or sketches in
identifying suspects when a live identification procedure is impractical. 84 Suspect
photographs must be arranged at random with five photographs of different people 85 who
are of “similar general appearance.” 86

82
83
84
85
86

State v. McClure, 488 P.2d 971, 972 (Ariz. 1971).
See, e.g., State v. Lehr, 38 P.3d 1172, 1184 (Ariz. 2002); State v. Dixon, 735 P.2d 761 (Ariz. 1987).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.3 (2002).
Id.
Id.

73

The Phoenix OO requires that all lineups consist of at least five individuals, including the
suspect 87 and that lineup participants have similar physical characteristics, such as age,
height, weight, hair length and color, and physical build.88 Participants’ sex and race also
must be the same, except for unusual cases where these characteristics are hard to
determine. 89 Furthermore, the Phoenix OO requires that photographic lineups be
arranged at random with, if possible, four or more photographs of different people 90 with
“similar general appearance.” 91 The use of a “mug book” is permitted when there is no
specific suspect, but a “reasonable number” of photographs must be shown to the
witness. 92
The Tucson GOP requires that a physical lineup consist of at least six persons, including
the suspect, 93 who share similar physical characteristics.94 The participants’ age, height,
weight, hair length and color, and physical build all will be considered relevant factors. 95
The sex and ethnicity of the participants, if obvious, should be identical. 96 In addition,
when a live identification procedure is impractical or not possible, the Tucson GOP
permits the use of photographs, photo books, sketches, or composite drawings to identify
criminal suspects. 97 Whenever a photograph depicting an identified suspect is shown to a
witness, it must be arranged at random with five or more photographs of different people.
The people shown in the photo display must be of “substantially similar general
appearance.” If a single picture of a lineup includes the suspect, it may be shown without
any additional photographs. 98
The YCSO Manual provides that lineups should be conducted using a minimum of six
people who have similar physical characteristics to the suspect. 99 The YCSO also allows
the use of photo lineups and considers six to eight photographs to be “reasonable.” 100
Beyond these four examples, however, we were unable to determine the extent to which
these sort of procedures have been adopted by individual law enforcement agencies in
Arizona.
The Arizona Supreme Court has explained that “lineups need not and usually cannot be
ideally constituted. Rather, the law only requires that they depict individuals who
basically resemble one another such that the suspect’s photograph does not stand out.” 101
The Arizona Court of Appeals has gone further and held that there is “no set number of
photographs which must be exhibited to an identification witness. . . . The question is not
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101

PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(1) (1999).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(2)(a) (1999).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(2)(b) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §§ 9(B)(1), 10(F) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, §§ 10(G) (2003).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 10(H)(1) (2003).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.1 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES §§ 2134.1, 2135.1 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.1.
Id.
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2133.1 (2005).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2134.1 (2005).
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-1-12 (2001).
Id.
State v. Alvarez, 701 P.2d 1178, 1181 (Ariz. 1985) (en banc).

74

how many photographs were exhibited, but rather was the procedure used unduly
suggestive.” 102
Specifically, Arizona courts have found certain pre-trial identification procedures not
impermissibly suggestive, such as where the lineup participants had subtle differences in
age, 103 height, weight, hair length, 104 amount of facial hair, 105 eye color, 106 or where the
defendant had subtle distinguishing characteristics such as small moles 107 or a small
tattoo on the face. 108 Additionally, subtle discrepancies, such as the photo of a defendant
containing differences in lighting or distance, do not render the lineup impermissibly
suggestive. 109 The placement of the defendant’s photo in the lineup does not render the
lineup impermissibly suggestive either, so long as the placement was “random.” 110 And
while the Arizona Supreme Court disapproves of the practice of “showing witnesses
multiple lineups having only the prime suspect’s photograph in common,” “the fact that a
defendant’s photograph was the only one to appear twice was not necessarily fatal.
Under the ‘totality of the circumstances,’ a witness’ identification of a defendant can be
reliable despite suggestive pretrial identification procedures.” 111
Based on this information, we were unable to ascertain whether Arizona case law or the
relevant CALEA standards as adopted by Arizona law enforcement agencies require full
compliance with this ABA Best Practice, or whether individual law enforcement agencies
across the State have adopted mandatory internal procedures which meets this ABA Best
Practice. We note, however, that a review of the four law enforcement agency operating
manuals demonstrates a commitment to the principles underlying the ABA Best Practice.
3. Recording Procedures
a. The guidelines should require that, whenever practicable, the police
should videotape or digitally video record lineup procedures,
including the witness’s confidence statements and any statements
made to the witness by the police.
b. The guidelines should require that, absent videotaping or digital
video recording, a photograph should be taken of each lineup
and a detailed record made describing with specificity how the
entire procedure (from start to finish) was administered, also
noting the appearance of the foils and of the suspect and the
identities of all persons present.

The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures video or digitally record the witness’s confidence statement
102
103
104
105
106
107
108
109
110
111

State v. Rood 510 P.2d 66, 68 (Ariz. Ct. App. 1973).
State v. Hooper, 703 P.2d 482 (Ariz. 1985), cert. denied, 474 U.S. 1073 (1986).
State v. Perez, 690 P.2d 71, 75 (Ariz. 1973); State v. Money, 514 P.2d 1014 (Ariz. 1973).
State v. Gonzales, 892 P.2d 839 (Ariz. 1995) (en banc).
State v. Martinez, 588 P.2d 355, 357-58 (Ariz. Ct. App. 1978).
State v. Alvarez, 701 P.2d 1178, 1180 (Ariz. 1985) (en banc).
State v. Perea, 690 P.2d 75 (Ariz. 1984).
State v. Phillips, 46 P.3d 1048 (Ariz. 2002); Gonzales, 892 P.2d at 845.
Perea, 690 P.2d at 75.
Alvarez, 701 P.2d at 1180.

75

and any law enforcement statements made to witnesses or, in the absence of video
recording, that law enforcement officials photograph the lineup. A law enforcement
agency complying with the CALEA standards, requiring the agency to establish steps for
identifying suspects, could create a guideline that complies with this best practice,
however.
While some form of documentation of pre-trial identification procedures is required by
all four law enforcement agencies, the specifics vary among the agencies. For example,
the Phoenix OO requires that photographs or video recordings be made of all lineups.112
The PSCO Manual provides that “[a] complete record of each identification procedure
will be made. The time, location, and the identity of those present (including persons
viewed other than the suspect) will be noted. . . Photographic, sound and video recording
devices will be used whenever practicable.” 113 The Tucson GOP also requires that
photographs or video recordings be made of all lineup proceedings. 114 Meanwhile, the
YCSO Manual mandates that for all lineups, the date, time, place, name of participants
and witnesses, and location of the suspects/participants be documented, 115 but it does not
require that audio or video recordings be made.
The United States Court of Appeals for the Ninth Circuit has ruled that the failure to
record a lineup does not constitute a due process violation unless (1) the evidence not
preserved is potentially exculpatory; and (2) that the police acted in bad faith. 116 While
Arizona courts do not appear to have considered this issue directly, in at least one case,
the lack of a lineup proceeding record did not render the resulting identification as
unusable. 117
Ultimately, it does not appear that Arizona law, the relevant CALEA standards, or two of
the four law enforcement agencies, require compliance with this ABA Best Practice.
c. The guidelines should require that, regardless of the fashion in
which a lineup is memorialized, and for all other identification
procedures, including photospreads, the police shall,
immediately after completing the identification procedure and in
a non-suggestive manner, request witnesses to indicate their level
of confidence in any identification and ensure that the response
is accurately documented.

The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures request, in a non-suggestive manner, that the witness
indicate their level of confidence in any identification and document that statement
accurately. Our review of the Phoenix Police Department, Tucson Police Department,
Yavapai County Sheriff’s Office, and Pinal County Sheriff’s Office also did not uncover
112
113
114
115
116
117

PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(9) (1999).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.1(4) (2002).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.7 (2005).
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-1-12 (2002).
United States v. Watson, 66 F.3d 337 (9th Cir. 1995) (unpublished).
State v. Caldwell, 573 P.2d 854 (Ariz. 1977) (en banc).

76

any guidelines that comply with this best practice in any of the relevant procedure
manuals. However, a review of Arizona case law does indicate numerous cases in which
witnesses indicated a percentage or general level of confidence in their identification. 118
Nonetheless, we were unable to ascertain whether Arizona case law, the relevant CALEA
standards as adopted by accredited law enforcement agencies, or individual law
enforcement operating procedures across the State of Arizona require full compliance
with this ABA Best Practice.
4. Immediate Post-Lineup or Photospread Procedures
a. The guidelines should require that police and prosecutors should
avoid at any time giving the witness feedback on whether he or
she selected the "right man"—the person believed by law
enforcement to be the culprit.

The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures avoid giving the witness feedback on whether s/he selected
the proper suspect.
The Phoenix OO instructs officers not to say or do anything to distinguish the suspect
from other lineup participants. 119 The Tucson GOP requires that officers neither say nor
do anything to set a suspect apart from the other lineup participants, or “in any way
indicate the identity of the suspect.” 120
More specifically, the PCSO Manual provides that “[p]olice actions which suggest the
guilt of a suspect to a victim or any eyewitness are improper and must be avoided even
when thee (sic) is other evidence to connect the suspect with the crime. The witness’
recollection, unaided by outside influence, must govern the identification.” 121 As part of
this, “[d]eputies will not by word or gesture suggest their opinion to any witness that the
suspect committed the crime. Witnesses making inquiries about a deputy’s opinion will
be informed of this restriction.” 122
The YCSO Manual does not appear to deal with this issue.
We were, however, unable to ascertain whether Arizona case law or the relevant
standards require full compliance with this ABA Best Practice, or whether individual law
enforcement agencies statewide, outside of the four discussed, have adopted mandatory
internal procedures which meet this ABA Best Practice.
In conclusion, even though numerous law enforcement agencies should have adopted
written directives to be in compliance with CALEA, the CALEA standards do not require
agencies to adopt written directives as specific as the ABA Best Practices outlined in
118
119
120
121
122

See, e.g., State v. Lehr, 38 P.3d 1172, 1184 (Ariz. 2002); State v. Dixon, 735 P.2d 761 (Ariz. 1987).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 9(B)(4) (1999).
TUCSON POLICE DEPT. GEN. OPERATING PROCEDURES § 2135.6 (2005).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.1(1) (2002).
PINAL COUNTY SHERIFF’S OFFICE PROCEDURES MANUAL § 3.4.2.1(1)(c) (2002).

77

Recommendation #1. Furthermore, despite obtaining the relevant Standard Operating
Procedures of four law enforcement agencies in Arizona, we were unable to obtain the
written directives of all law enforcement agencies to assess whether the State as a whole
is in compliance with Recommendation #1. We are, therefore, unable to conclude
whether the State of Arizona meets the requirements of Recommendation #1.
B. Recommendation #2
Law enforcement officers and prosecutors should receive periodic training
on how to implement the guidelines for conducting lineups and
photospreads, as well as training on non-suggestive techniques for
interviewing witnesses.

The POST Board’s basic training course outline provides for instruction on interviewing
and questioning, 123 but this basic training outline does not appear to include any
instruction on conducting pre-trial identification procedures.
While the CALEA standards do not specifically require that certified agencies conducting
pre-trial identification procedures receive periodic training on the implementation of such
guidelines, including training on non-suggestive techniques for interviewing witnesses, a
law enforcement agency complying with the CALEA standards, requiring the agency to
establish “a written directive that requires each sworn officer [to] receive annual training
on legal updates” 124 could create a training program that complies with Recommendation
#2. Notably, the POST Board requires that in addition to its basic training requirements,
peace officers complete eight hours of continuing training each year of advanced or
remedial instruction in one or more of the areas covered in the basic training course. 125
There appears to be a regularly-offered sixteen-hour continuing training course on
interviews and interrogations that is intended to help law enforcement officers “to
recognize the value, impact, use, and importance of statements from victims, witnesses,
and perpetrators” and to teach law enforcement officers to learn “how to prepare for,
obtain, and use statements, admissions and confessions for investigative and court
purposes.” 126
Despite this, we were unable to sufficiently ascertain whether law enforcement agencies,
certified by CALEA or otherwise, are complying with this particular Recommendation.
Because we can only conclude with certainty that law enforcement officials are required
to receive basic training on interviewing techniques and that continuing education on this
123

ARIZ. ADMIN. CODE R13-4-116(E) (2003).
CALEA STANDARDS, supra note 61, at 33-4 (standard 33.5.1).
125
ARIZ. ADMIN. CODE R13-4-111(A) (2003). In addition, peace officers below the first level supervisory
position within the peace officer’s appointing agency must complete eight hours of proficiency training
every three years. Proficiency training is training that requires the physical demonstration of one or more
performance objectives included in the basic training course and also requires the demonstration of the use
of judgment in the application of that physical act. Peace officers who are authorized to carry firearms also
must be reauthorized to carry a firearm once per calendar year. See ARIZ. ADMIN. CODE R13-4-111(B), (C)
(2003).
126
Arizona Peace Officer Standards and Training Board, Training Calendar (July-Dec. 2005 edition) (on
file with author).
124

78

topic is offered, but not necessarily required, the State of Arizona only partially meets the
requirements of Recommendation #2.
C. Recommendation #3
Law enforcement agencies and prosecutors’ offices should periodically
update the guidelines for conducting lineups and photospreads to
incorporate advances in social scientific research and in the continuing
lessons of practical experience.

We were unable to obtain sufficient information to assess whether law enforcement
agencies and prosecutors in Arizona periodically update their guidelines for conducting
pre-trial identifications and, therefore, we were unable to conclude whether the State of
Arizona meets the requirements of Recommendation #3.
D. Recommendation #4
Videotape the entirety of custodial interrogations of crime suspects at police
precincts, courthouses, detention centers, or other places where suspects are
held for questioning, or, where videotaping is impractical, audiotape the
entirety of such custodial interrogations.

The State of Arizona does not require that interrogations and confessions be audio or
videotaped, but as of February 6, 2006, twenty-eight law enforcement agencies in
Arizona— Casa Grande Police Department, Chandler Police Department, Coconino
County Sheriff’s Office, El Mirage Police Department, Flagstaff Police Department, Gila
County Sheriff’s Office, Gilbert Police Department, Glendale Police Department, Marana
Police Department, Maricopa County Sheriff’s Office, Mesa Police Department, Oro
Valley Police Department, Payson Police Department, Peoria Police Department,
Phoenix Police Department, Pima County Sheriff’s Office, Pinal County Sheriff’s Office,
Prescott Police Department, Scottsdale Police Department, Somerton Police Department,
South Tucson Police Department, Surprise Police Department, Tempe Police
Department, Tucson Police Department, Yavapai County Sheriff’s Office, Yuma County
Sheriff’s Office, and the Yuma Police Department—regularly record the entirety of
custodial interrogations. 127 These police departments use either audio or video recording
equipment to record interviews of individuals under arrest in a police facility from the
moment Miranda 128 warnings are given until the interview ends. 129
Despite evidence that these twenty-eight law enforcement agencies record interrogations,
including the Phoenix Police Department, the Tucson Police Department, the Pinal
County Sheriff’s Office, and the Yavapai County Sheriff’s Office, the relevant operating
127

Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 1 Center on
Wrongful Convictions Spec. Rep., at A1 (2004).
128
Miranda v. Arizona, 384 U.S. 436 (1966) (holding that the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination).
129
See Sullivan, supra note 127. This report, however, does not include departments that conduct
unrecorded interviews followed by recorded confessions or recordings made outside a police station or
lockup, such as at crime scenes or in squad cars. Id. at 5.

79

procedures of these four agencies do not appear to mandate the recording of
interrogations. The Phoenix OO states only that the police officer must “document
everything said by the suspect.” 130 In addition, the Operation Order states that “when
officers tape record an interrogation or an interview with a suspect, witness, or victim in
the course of an investigation, the tapes will be preserved for trial by impounding
them.” 131 The YCSO Manual suggests that “detailed notes or recorded tape be made of
the interrogation for court use giving time, date, location, officers present, waiver of
rights if applicable, time interrogation began/ended” 132 and does not otherwise appear to
deal with the recording of interrogations. In addition, the Tucson GOP and the PSCO
Manual do not appear to address video or audio taping of interrogations at all. 133
Notably, there has been some movement toward a statewide rule on the issue of recording
interrogations and confessions. Upon recommendation from the Arizona Capital Case
Commission, the Arizona Attorney’s General’s Office drafted a protocol that states:
The Attorney General and the Capital Case Commission strongly
recommend that law enforcement officers in Arizona record with audio
tape or video tape the process of informing a suspect of his constitutional
rights, the waiver of those rights by the suspect, and all questions and
answers of that suspect during interrogation whenever feasible. 134
The protocol was considered and discussed by the Attorney General’s Law Enforcement
Advisory Board. The Board agreed to submit the protocol to the Arizona Criminal
Justice Commission for consideration, 135 but to the best of our knowledge, there has been
no follow-up legislative action on the matter.
The Arizona Supreme Court has agreed with this recommendation and emphasized that
“[r]ecording the entire interrogation process provides the best evidence available and
benefits all parties involved.” 136
Although most of the law enforcement agencies in Arizona videotape or audiotape the
entirety of custodial interrogations, not all appear to be doing so. Therefore, the State of
Arizona only partially meets the requirements of Recommendation #4.
E. Recommendation #5
Ensure adequate funding to ensure proper development, implementation,
and updating policies and procedures relating to identifications and
interrogations.

130

PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 3(C)(b) (1999).
PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 3(D)(1) (2003) (emphasis added).
132
YAVAPAI COUNTY SHERIFF’S OFFICE MANUAL § 2-13-6 (2002).
133
Despite not requiring the recording of interrogations, both the Tucson GOP and the PSCO are said to
record interrogations and confessions in practice. See Sullivan, supra note 127.
134
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 15 (Dec. 2002).
135
Id.
136
State v. Jones, 49 P.3d 273, 279 (Ariz. 2002).
131

80

We were unable to ascertain whether the State of Arizona provides adequate funding to
ensure the proper development, implementation and updating of procedures for
identifications and interrogations and, therefore, we cannot determine whether the State
of Arizona meets the requirements of Recommendation #5.
F. Recommendation #6
Courts should have the discretion to allow a properly qualified expert to
testify both pre-trial and at trial on the factors affecting eyewitness
accuracy.

The Arizona Supreme Court has held that the trial court has discretion in determining the
admissibility of expert testimony on eyewitness identification 137 and that its
determination will not be overturned absent an abuse of discretion. 138 Specifically, in
determining admissibility of such testimony, the court should consider the following
criteria: whether the expert is qualified, whether the subject is a proper subject of expert
testimony, whether the opinion conforms to an appropriate scientific explanatory theory,
and whether the unfair prejudicial effect does not outweigh the probative value. 139 If the
testimony is allowed, it must be “limited to an exposition of the factors affecting
reliability” and the “expert witnesses should not be allowed to give their opinion of the
accuracy or credibility of a particular witness.” 140 The State of Arizona, therefore, meets
the requirements of Recommendation #6.
G. Recommendation #7
Whenever there has been an identification of the defendant prior to trial,
and identity is a central issue in a case tried before a jury, courts should use
a specific instruction, tailored to the needs of the individual case, explaining
the factors to be considered in gauging lineup accuracy.

The Arizona Standard Criminal Instructions include an instruction that provides juries
with factors to consider when determining the reliability of eyewitness identification. 141
The text of the instruction is as follows:
The State must prove beyond a reasonable doubt that the in-court
identification of the defendant at this trial is reliable. In determining
whether this in-court identification is reliable you may consider such
things as:
(1)
(2)
(3)
137
138
139
140
141

The witness’ opportunity to view the defendant at the time of the
crime;
The witness’ degree of attention at the time of the crime;
The accuracy of any descriptions the witness made prior to the
pretrial identification;

State v. Chapple, 660 P.2d 1208, 1224 (Ariz. 1983).
Id. at 1224.
Chapple, 660 P.2d at 1218.
State v. Nordstrom, 25 P.3d 717, 730-31 (Ariz. 2001) (quoting in part Chapple, 660 P.2d at 1222).
REVISED ARIZ. JURY INSTRUCTIONS (CRIMINAL 3RD) 39 (1996).

81

(4)
(5)
(6)

The witness’ level of certainty at the time of the pretrial
identification;
The time between the crime and the pretrial identification;
Any other factor that affects the reliability of the identification.

If you determine that the in-court identification of the defendant at this
trial is not reliable, then you must not consider that identification. 142
This instruction must be given, if requested, when the court has concluded that the
pretrial identification procedures were unduly suggestive, but that the proposed in-court
identification has been shown by clear and convincing evidence to be reliable and derived
from an independent source. 143
Because the pattern jury instruction only applies to in-court identifications and is given
only when the pretrial identification is determined to have been unduly suggestive, the
State of Arizona only partially meets the requirements of Recommendation #7.

142
143

Id.
State v. Dessureault, 453 P.2d 951, 955 (Ariz. 1969).

82

CHAPTER FOUR
CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES
INTRODUCTION TO THE ISSUE
With the increased reliance on forensic evidence—including DNA, ballistics,
fingerprinting, handwriting comparisons, and hair samples—it is vital that crime
laboratories and medical examiner offices, as well as forensic and medical examiners,
provide expert, accurate results.
Despite the increased reliance on forensic evidence and those who collect and analyze it,
the validity and reliability of work done by unaccredited and accredited crime
laboratories have increasingly been called into serious question. 1 While the majority of
crime laboratories and medical examiner offices, along with the people who work in
them, strive to do their work accurately and impartially, a troubling number of laboratory
technicians have been accused and/or convicted of failing to properly analyze blood and
hair samples, reporting results for tests that were never conducted, misinterpreting test
results in an effort to aid the prosecution, testifying falsely for the prosecution, failing to
preserve DNA samples, or destroying DNA or other biological evidence. This has
prompted internal investigations into the practices of several prominent crime
laboratories and technicians, independent audits of crime laboratories, the re-examination
of hundreds of cases, and the conviction of many innocent individuals.
The deficiencies in crime laboratories and the misconduct and incompetence of
technicians have been attributed to lack of proper training and supervision, lack of testing
procedures or the failure to follow procedures, and inadequate funding.
In order to take full advantage of the power of forensic science to aid in the search for
truth and to minimize its enormous potential to contribute to wrongful convictions, crime
labs and medical examiner offices must be accredited, examiners and lab technicians
must be certified, procedures must be standardized and published, and adequate funding
must be provided.

1

See Janine Arvizu, Shattering The Myth: Forensic Laboratories, 24 CHAMPION 18 (2000); Paul C.
Giannelli, The Abuse Of Scientific Evidence In Criminal Cases: The Need For Independent Crime
Laboratories, 4 VA. J. SOC. POL'Y & L. 439 (1997); Frederic Whitehurst, Forensic Crime Labs:
Scrutinizing Results, Audits & Accreditation—Part 1, 28 CHAMPION 6 (2004); Frederic Whitehurst,
Forensic Crime Labs: Scrutinizing Results, Audits & Accreditation—Part 2, 28 CHAMPION 16 (2004).

83

I. FACTUAL DISCUSSION
The Arizona Revised Statutes (A.R.S.) provide for the Department of Public Safety
Scientific Criminal Analysis Bureau (Bureau) to assist law enforcement officers in
Arizona 2 and for the appointment of a county medical examiner. 3 The Bureau provides
scientific analysis of evidence, technical crime scene assistance, secure storage of
evidentiary items, training, and expert testimony to all state criminal justice agencies. 4
The A.R.S. also allow each county board of supervisors to appoint a county medical
examiner. Each county medical examiner must be a “licensed physician in good standing
certified in pathology and skilled in forensic pathology.” 5
A. Crime Laboratories
1. The Bureau’s Statewide System of Crime Laboratories
The Bureau’s statewide system of crime laboratories is designed to “assist the
Department [of Public Safety], the Arizona Criminal Justice Community, and the public
in the timely investigation and adjudication of criminal cases by utilizing state-of-the-art
analytical techniques; providing the most accurate scientific analysis of evidence; and
presenting expert court testimony.” 6 To accomplish this, the Bureau “provides scientific
analysis of evidence, technical crime scene assistance, secure storage of evidentiary
items, training, and expert testimony to all Criminal Justice Agencies in the State.
Scientific and technical services are provided in the areas of DNA, Serology, Toxicology,
Controlled Substances (Drugs), Firearms and Toolmarks, Trace Evidence (Explosives,
Arson, Hairs, Fibers, Paint, Glass, etc.), Latent Fingerprints, Questioned Documents,
Breath Alcohol, and Photography.” 7
The Bureau’s statewide system of crime laboratories includes four regional laboratories
in the following locations:
(1)
(2)
(3)
(4)

Phoenix (Central Regional Laboratory);
Flagstaff (Northern Regional Laboratory);
Lake Havasu City (Western Regional Laboratory);
Tucson (Southern Regional Laboratory). 8

These four labs provide complete crime lab services to 295 criminal justice agencies in
Arizona, including municipal, tribal, county, state and federal users. 9 The four

2

ARIZ. REV. STAT. §§ 41-1712(A), 41-1771 (2006).
ARIZ. REV. STAT. § 11-591 (2006).
4
Scientific
Analysis
Bureau,
Department
of
Public
Safety,
at
http://www.azdps.gov/agency/criminaljusticesupport/scientific/default.asp (last visited on Jan. 5, 2006).
5
ARIZ. REV. STAT. § 11-591 (2006).
6
Scientific Analysis Bureau, supra note 4.
7
Scientific
Analysis
Bureau,
Overview,
at
http://www.azdps.gov/agency/criminaljusticesupport/scientific/default.asp (last visited on Jan. 5, 2006).
8
Laboratories Accredited by ASCLS/LAB, American Society of Crime Laboratories Directory, at
http://www.ascld-lab.org/legacy/aslablegacylaboratories.html#AZ (last visited on Jan. 20, 2006).
3

84

laboratories each provide a range of laboratory services, including: DNA, Serology,
Toxicology, Controlled Substances (Drugs), Firearms and Tool marks, Trace Evidence
(Explosives, Arson, Hairs, Fibers, Paint, Glass, etc.), Latent Fingerprints, Questioned
Documents, Breath Alcohol, and Photography. 10 Services provided at each laboratory
vary, but each region has access to the services offered by the three other regional
laboratories. 11
Because the procedures for the collection, preservation, and/or testing of evidence
adopted by the Bureau do not have to be “published or made available for public
inspection,” it is instructive to review the requirements of the accreditation programs
through which Bureau laboratories have obtained accreditation to understand the
procedures, guidelines, standards, and methods used by the Bureau laboratories. 12
2. ASCLD/LAB Accreditation
“The Crime Laboratory Accreditation Program of the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is a voluntary
program in which any crime laboratory may participate to demonstrate that its
management, operations, personnel, procedures, equipment, physical plant, security, and
personnel safety procedures meet established standards.” 13 According to the
ASCLD/LAB website, all four of the Bureau’s laboratories are currently accredited
through the ASCLD/LAB program, including: (1) the Arizona Department of Public
Safety’s Central Regional Laboratory in Phoenix, A.Z.; (2) the Arizona Department of
Public Safety’s Northern Regional Laboratory in Flagstaff, A.Z.; (3) the Arizona
9

2004
ARIZ.
DEP’T
OF
PUBLIC
SAFETY
ANN.
REP.
62,
available
at
http://www.azdps.gov/reports/annualreport/AzDpsArFy2004.pdf (last visited on June 13, 2006).
10
Scientific
Analysis
Bureau,
Department
of
Public
Safety,
at
http://www.azdps.gov/agency/criminaljusticesupport/scientific/default.asp (last visited on Jan. 5, 2006).
11
STAFF OF JOINT LEGISLATIVE BUDGET COMMITTEE, ARIZ. LEG., PROGRAM SUMMARY, DEP’T OF
PUBLIC SAFETY, SCIENTIFIC ANALYSIS (CRIME LABS), at http://www.azleg.gov/jlbc/psdpssa.pdf (last visited
on Feb. 15, 2006).
12
See, e.g., AM. SOC’Y OF CRIME LAB. DIRS., LAB. ACCREDITATION BD., LABORATORY ACCREDITATION
BOARD 2003 MANUAL 3, app. 1 (on file with author). It should be noted that laboratories receiving federal
funding must also comply with the Federal Bureau of Investigation’s DNA Quality Assurance Standards,
requiring periodic external audits to ensure compliance with the required quality assurance standards. See
42 U.S.C. § 14131(a)(1) (2006); DNA Advisory Board, Quality Assurance Standards for Forensic DNA
Testing Laboratories, 2 FORENSICS SCI. COMM. 3 (July 2000). While we do not know the extent of any
federal funding of Bureau laboratories, we do know that the Bureau’s crime laboratory signed a
“cooperative agreement” with the FBI in 2004 to become “one of four facilities nationwide, and the only
one in the western United States, to develop a mitochondrial DNA (MtDNA) laboratory.” This two-year
agreement enables the Bureau to establish MtDNA capabilities for all criminal justice agencies in the State
and it will assist the FBI in analyzing cases from agencies throughout the western United States. The FBI
provided approximately $753,000 per year for two years for personnel, supplies, and training. In addition,
the Bureau received approximately $500,000 from the National Institute of Justice to purchase MtDNA
equipment and make laboratory space renovations that are required to start the program. The Bureau also
received a $3.2 million grant from the National Institute of Justice to be used for the processing of DNA
“no suspect” cases. The funding allows all crime laboratories in Arizona to process evidence from violent
crimes where there is no suspect and will allow almost 3,000 unsolved crimes (mostly sexual assaults and
homicides) to be reviewed and compared to state and national DNA databases. See ARIZ. DEP’T OF PUBLIC
SAFETY, supra note 9.
13
American
Society
of
Crime
Laboratory
Directors,
Accreditation,
at
http://www.ascld.org/accreditation.html (last visited on Oct. 5, 2005).

85

Department of Public Safety’s Western Regional Laboratory in Lake Havasu City, A.Z.;
and (4) the Arizona Department of Public Safety’s Southern Regional Laboratory in
Tucson, A.Z. In addition, the Mesa Police Department Crime Laboratory, the Phoenix
Police Department Laboratory Services Bureau, the Scottsdale Police Department Crime
Laboratory, and the Tucson City-County Crime Laboratory, also are accredited through
the ASCLD/LAB program. 14
i. Application Process for ASCLD/LAB Accreditation
To obtain accreditation by the ASCLD/LAB, a laboratory must submit an “Application
for Accreditation,” which requests information on the qualifications of staff, laboratory
quality manual(s), procedures for handling and preserving evidence, procedures on case
records, and security procedures. 15 In addition to the application, the laboratory must
also submit a “Grade Computation/Summation of Criteria Ratings,” which is based on
the laboratory’s self-evaluation of whether it is in compliance with all of the criteria
contained in the ASCLD/LAB Laboratory Accreditation Board Manual. 16
ii. ASCLD/LAB Accreditation Standards and Criteria
The ASCLD/LAB Laboratory Accreditation Board 2003 Manual (Manual) contains
various standards and criteria and each criterion has been assigned a rating of Essential,
Important, or Desirable. 17 In order to obtain accreditation through ASCLD/LAB, “[the]
laboratory must achieve not less than 100% of the Essential, 18 75% of the Important, 19
and 50% of the Desirable 20 criteria.” 21 Some of the Essential criteria contained in the
Manual require:
(1)

(2)
(3)

Clearly written and well understood procedures for handling and
preserving the integrity of evidence, laboratory security, preparation,
storage, security and disposition of case records and reports, and for
maintenance and calibration of equipment and instruments; 22
A training program to develop the technical skills of employees in each
applicable functional area; 23
A chain of custody record that provides a comprehensive, documented
history of evidence transfer over which the laboratory has control; 24

14

American Society of Crime Laboratories Directors, Laboratories Accredited by ASCLD/LAB, at
http://www.ascld-lab.org/legacy/aslablegacylaboratories.html#AZ (last visited on Jan. 20, 2006).
15
AM. SOC’Y OF CRIME LAB. DIRS., LAB. ACCREDITATION BD., LABORATORY ACCREDITATION BOARD
2003 MANUAL 3, app. 1 (on file with author).
16
Id. at 3.
17
Id. at 2.
18
The Manual defines “Essential” as “[s]tandards which directly affect and have fundamental impact on
the work product of the laboratory or the integrity of the evidence. Id.
19
The Manual defines “Important” as “[s]tandards which are considered to be key indicators of the
overall quality of the laboratory but may not directly affect the work product nor the integrity of the
evidence. Id.
20
The Manual defines “Desirable” as “[s]tandards which have the least effect on the work product or the
integrity of the evidence but which nevertheless enhance the professionalism of the laboratory. Id.
21
Id. (emphasis omitted).
22
Id. at 14.
23
Id. at 19.

86

(4)
(5)
(6)
(7)
(8)
(9)
(10)

The proper storage of evidence to protect the integrity of the evidence; 25
A comprehensive quality manual; 26
The performance of an annual review of the laboratory’s quality system; 27
The use of scientific procedures that are generally accepted in the field or
supported by data gathered and recorded in a scientific manner; 28
The performance and documentation of administrative reviews of all
reports issued; 29
The monitoring of the testimony of each examiner at least annually; 30 and
A documented program of proficiency testing, measuring examiners’
capabilities and the reliability of analytical results. 31

The Manual also contains Essential criteria on personnel qualifications, requiring
examiners to have a specialized baccalaureate degree relevant to their crime laboratory
specialty, experience/training commensurate with the examinations and testimony
provided, and an understanding of the necessary instruments and methods and
procedures. 32 Additionally, examiners must successfully complete a competency test
prior to assuming casework and thereafter successfully complete annual proficiency
exams. 33
Once the laboratory has assessed its compliance with the ASCLD/LAB criteria and
submitted a complete application, the ASCLD/LAB inspection team, headed by a team
captain, will arrange an on-site inspection of the laboratory. 34
iii. On-Site Inspection, Decisions on Accreditation, and the Duration of
Accreditation
The on-site inspection consists of interviewing analysts and reviewing a sample of case
files, including all notes and data, generated by each analyst. 35 The inspection team will
also interview all trainees to evaluate the laboratory’s training program. 36 At the
conclusion of the inspection, the inspection team will meet with the laboratory director to
review the findings and discuss any deficiencies. 37
The inspection team must provide a draft inspection report to the Executive Director of
the ASCLD/LAB, who will then distribute the report to the “audit committee,” which is
comprised of a ASCLD/LAB Board member, the Executive Director, at least three staff
24
25
26
27
28
29
30
31
32
33
34
35
36
37

Id. at 20.
Id. at 21.
Id. at 23.
Id. at 27.
Id. at 27.
Id. at 31.
Id. at 32.
Id. at 33-34.
Id. at 38-45.
Id.
Id. at 5.
Id.
Id. at 6.
Id.

87

inspectors, and a team captain. 38 Accreditation decisions must be made within twelve
months of “the date of the laboratory’s first notification of an audit committee’s
consideration of the draft inspection report.” 39 During that time period, the laboratory
may correct any deficiencies identified by the inspection team during the on-site
inspection. 40
If the ASCLD/LAB Board grants accreditation to the laboratory, it will be effective for
five years “provided that the laboratory continues to meet ASCLD/LAB standards,
including completion of the Annual Accreditation Audit Report and participation in
prescribed proficiency testing programs.” 41 After the five-year time period, the
laboratory must apply for reaccredidation and undergo another on-site inspection. 42
B. Medical Examiner Offices
1. County Medical Examiner Offices
a. Qualification Requirements for County Medical Examiners
The State of Arizona does not have a chief medical examiner, but instead allows each
county to appoint “a qualified person” to be the county medical examiner. 43 To be
eligible for the position, the individual must be a “licensed physician in good standing
certified in pathology and skilled in forensic pathology.” 44 If the county board of
supervisors determines that the appointment of a county medical examiner is not
practical, it may establish a list of licensed physicians who will be available to perform
the duties required of a county medical examiner. Licensed physicians on the list do not
need to be residents of the county, nor do they need to be certified in pathology or skilled
in forensic pathology. Instead, they must agree to perform medical examinations or
autopsies to determine the cause and manner of death on behalf of the county on a
contractual basis. 45
b. Powers and Duties of County Medical Examiners
The county medical examiner or licensed physician must:
(1)
(2)

Be responsible for medical examination or autopsy of a human body when
death occurred under certain specified circumstances;
Take charge of the dead body of which the medical examiner is notified
and, after making inquiries regarding the cause and manner of death,
examine the body;

38

Id.
Id. at 7.
40
Id.
41
Id. at 1.
42
Id.
43
ARIZ. REV. STAT. § 11-591 (2006).
44
Id. For a list of the American Board of Pathology requirements for certification and re-certification,
see American Board of Pathology, Requirements for Primary and Subspecialty Certifications, at
http://www.abpath.org/ReqForCert.htm (last visited on Oct. 5, 2005).
45
ARIZ. REV. STAT. § 11-592(A) (2006).
39

88

(3)
(4)

(5)

(6)
(7)
(8)
(9)

Certify the cause and manner of death following a medical examination or
an autopsy, or both;
Make inquiries regarding the cause and manner of death, reduce the
findings to writing and promptly make a full report on forms prescribed
for that purpose;
Execute a death certificate provided by the state registrar of vital statistics
indicating the cause as well as the manner of death for those bodies on
which a medical examination or autopsy is performed;
Notify the county attorney when death is found to be from other than
natural causes;
Notify the appropriate city, town, county or state law enforcement agency
if further investigation by such agency appears necessary;
Carry out the duties specified in 28-668; 46
Carry out the duties specified under the Revised Arizona Anatomical Gift
Act. 47

The county medical examiner also may (1) appoint qualified professional, technical and
clerical personnel as necessary for the administration of the office, subject to the approval
of the board of supervisors; and (2) authorize qualified practicing physicians in local
areas to perform medical examinations required of the county medical examiner. 48
The county medical examiner or a licensed physician employed to perform these
functions also may (1) “authorize the taking of anatomical gifts as they prove to be usable
for transplants or other treatment or therapy” if certain requirements are met; (2)
“authorize licensed or authorized physicians, surgeons or trained technicians who remove
parts of bodies to perform any part of a necessary medical examination provided they
follow a protocol established by the medical examiner or a person authorized to act as the
medical examiner”; and (3) “limit the removal of organs or tissues for transplants or other
therapy or treatment if, based on a physical examination of the body within a time that
permits a medically viable donation, their removal would interfere with a medical
examination, autopsy or certification of death.” 49
Among the county medical examiner’s responsibilities is investigating or causing to be
investigated the facts and circumstances of deaths under the following circumstances:
(1)

(2)
(3)
(4)
(5)

Death when not under the current care of a physician or nurse practitioner
for a potentially fatal illness or when an attending physician or nurse
practitioner is unavailable to sign the death certificate;
Death resulting from violence;
Death occurring suddenly when in apparent good health;
Death occurring in a prison;
Death of a prisoner;

46

ARIZ. REV. STAT. § 28-668 discusses accidents involving driver deaths and the testing of alcohol
concentration.
47
ARIZ. REV. STAT. § 11-594(A) (2006). ARIZ. REV. STAT. §§ 36-841–850 is the Revised Arizona
Anatomical Gift Act and deals with organ donation.
48
ARIZ. REV. STAT. § 11-594(B) (2006).
49
ARIZ. REV. STAT. § 11-594(C) (2006).

89

(6)
(7)
(8)
(9)

Death occurring in a suspicious, unusual, or unnatural manner;
Death from disease of accident believed to be related to the deceased’s
occupation or employment;
Death believed to present a public health hazard; and
Death occurring during anesthetic or surgical procedures. 50

Each county must provide the Department of Public Safety with the fingerprints of all
deceased people whose deaths require investigation. The fingerprints must be on a form
provided by the Criminal Identification Section (Section) and will be accompanied by
other information the Section requires, including a physical description of the deceased
and the date and place of death. Fingerprints taken under this statutory authority must
only be used for the purpose of purging criminal history files. All information and data
provided under this authority is confidential and may be disclosed only upon written
approval of the Director of Public Safety to the juvenile court, social agencies, public
health and law enforcement agencies, licensed or regulated by the State. 51
If a dispute arises over the findings of the medical examiner’s report, the medical
examiner, upon an order of the superior court, must make available for examination all of
the evidence and documentation to a court-designated licensed forensic pathologist. The
results of this examination must be reported to the Superior Court of the county issuing
the order. 52
In conducting an inquiry, the medical examiner or person performing the duties of a
medical examiner may enter any place in which the body or evidence of the
circumstances of the death may be found, so long as an investigating law enforcement
agent obtains a search warrant for private property not in the immediate location of where
the body was found. 53 The county medical examiner or person performing the duties of a
county medical examiner may, with the permission of the investigating law enforcement
agent, take into his/her possession any object found on the deceased or in the deceased’s
immediate vicinity which may aid in the determination of the deceased’s identity or the
cause or manner of death. Upon completion of the examiner’s findings, s/he must deliver
such object to the appropriate law enforcement agency, the legal representative of the
deceased, or to the county treasurer within thirty days. 54 If the death requires
investigation, no human body or body suspected of being human may be removed from
the place where the death occurred without first obtaining permission from the county
medical examiner or the person performing the duties of a county medical examiner.
Embalming, cleansing, or other alteration of the state or appearance of the body is not
allowed before official permission is obtained. No one, except a law enforcement agent
in the performance of his/her duties, may remove any effects of the deceased or any
instruments or weapons that may have been used in the death from the place of death or
the body unless s/he obtains prior permission from the county medical examiner, the

50
51
52
53
54

ARIZ. REV. STAT. § 11-593(A), (B) (2006).
ARIZ. REV. STAT. § 11-593(F) (2006).
ARIZ. REV. STAT. § 11-594(D) (2006).
ARIZ. REV. STAT. § 11-595(A) (2006).
ARIZ. REV. STAT. § 11-595(B) (2006).

90

person performing the duties of a county medical examiner, or the investigating law
enforcement agent. 55
After conducting the requisite investigation, the county medical examiner or person
performing the duties of a county medical examiner must determine whether the public
interest mandates an autopsy or other special investigation. In making this determination,
the county medical examiner or person performing the duties of a county medical
examiner may consider any autopsy request made by private persons or public officials.
An autopsy must be performed if the county attorney or a superior court judge of the
county where the death occurred requests that one be performed. 56
If an autopsy is performed, a full record or report of the facts must be made and filed in
the Office of the County Medical Examiner of the Board of Supervisors. The report may
be forwarded to the county attorney where the death occurred or the county where any
injury contributing to or causing the death was sustained, if the person who conducted the
autopsy thinks that it should be. 57 Upon the county attorney’s request, s/he must receive
a copy of the autopsy report. 58 The county medical examiner or the person performing
the duties of a county medical examiner may perform other necessary tests to determine
identity, cause and manner of death, and may retain tissues, specimens, and other
biological materials for subsequent examination. 59

55
56
57
58
59

ARIZ. REV. STAT. § 11-596 (2006).
ARIZ. REV. STAT. § 11-597(A) (2006).
ARIZ. REV. STAT. § 11-597(C) (2006).
ARIZ. REV. STAT. § 11-597(D) (2006).
ARIZ. REV. STAT. § 11-597(E) (2006).

91

II. ANALYSIS
A. Recommendation #1
Crime laboratories and medical examiner offices should be accredited,
examiners should be certified, and procedures should be standardized and
published to ensure the validity, reliability, and timely analysis of forensic
evidence.

The State of Arizona does not require crime laboratories or medical examiner offices to
be accredited. All of the crime laboratories of the Department of Public Safety Scientific
Criminal Analysis Bureau (Bureau), however, have been accredited by the Crime
Laboratory Accreditation Program of the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) since 1982. 60 In addition, the
Mesa Police Department Crime Laboratory, the Phoenix Police Department Laboratory
Services Bureau, the Scottsdale Police Department Crime Laboratory, and the Tucson
City-County Crime Laboratory, also have obtained accreditation through ASCLD/LAB. 61
The ASCLD/LAB accreditation program requires laboratory personnel to possess certain
qualifications. 62 For example, the ASCLD/LAB Laboratory Accreditation Board 2003
Manual requires the examiners to have a specialized baccalaureate degree relevant to
his/her crime laboratory specialty, experience/training commensurate with the
examinations and testimony provided, and an understanding of the necessary instruments
and methods and procedures. 63 The examiners must also successfully complete a
competency test prior to assuming casework responsibility and annual proficiency tests. 64
In an effort to ensure that crime lab employees possess the knowledge and skills
necessary to perform the required tasks, the Arizona Revised Statutes provide funds to
the Department of Public Safety, the Phoenix Police Department, the Tucson Police
Department, the Mesa Police Department, and the Scottsdale Police Department from the
Crime Lab Assessment Fund to educate and train forensic scientists in crime
laboratories. 65
According to the Joint Legislative Budget Committee (JLBC) Staff Program Summary of
the Bureau, all scientific analysis employees received one training session in the 2004
fiscal year and nearly half (49%) of employees received two. The estimate for the 2006
fiscal year is that 100% of employees will continue to receive one training session and
67% will receive two. 66
While we have very little data regarding whether the training provided by crime
laboratories does, in fact, ensure the valid, reliable, and timely analysis of forensic
evidence, the JLBC Staff Program Summary reports that 6.3%, or approximately 2,655 of
60
61
62
63
64
65
66

STAFF OF JOINT LEGISLATIVE BUDGET COMMITTEE, supra note 11.
American Society of Crime Laboratories Directors, supra note 14.
See supra notes 36-37, 60.
AM. SOC’Y OF CRIME LAB. DIRS., supra note 15, at 23-24.
Id.
ARIZ. REV. STAT. § 41-2415 (2006).
STAFF OF JOINT LEGISLATIVE BUDGET COMMITTEE, supra note 11.

92

the cases submitted to the Bureau crime lab system during the 2004 fiscal year were over
30 days old. The Bureau anticipated lowering that percentage to 2.5%, or approximately
1,298 cases, in the 2006 fiscal year. 67 As the JLBC acknowledges, however, “this
amount doesn’t include cases not processed in prior year(s)” and “[w]hile knowing the
quantity or percentage of cases in excess of 30 days old is helpful, it doesn’t correspond
to deficiencies within the program, given the time to complete the examination varies
substantially depending on the type of analysis being done.” 68 According to Todd
Griffith, the person who oversees the Bureau’s four crime labs, agencies who use their
labs can expect to wait two to four weeks for evidence to be processed in top-priority
cases. Lower-priority cases take even longer to process. 69
The ASCLD/LAB accreditation program also requires laboratories to have clearly written
procedures for handling and preserving the integrity of evidence; preparation, storage,
security and disposition of case records and reports; and for maintenance and calibration
equipment. 70 The program requires these procedures to be included in the laboratory’s
quality manual. 71 The program does not explicitly require the laboratory to publish its
procedures, however.
Despite the written procedures requirement, the June 2005 Audit Report by the U.S.
Department of Justice’s Office of the Inspector General, which analyzed the compliance
of the Bureau’s Phoenix DNA Laboratory with the standards governing combined DNA
index system activities, indicated that quality assurance problems exist in at least limited
circumstances. 72 For example, at the time of the audit, the laboratory found that there
were “no access restrictions limiting non-DNA laboratory personnel from accessing the
DNA laboratory, including after hours when no DNA personnel may be present,”
“freezers used for short-term evidence storage were not secured,” and the laboratory used
“open space within the laboratory for storage of convicted offender samples that could
not be stored within a locked sample storage room.” Some of the samples stored in open
space were sealed, but others awaiting analysis were not. 73 It is unclear if these problems
have been fixed, although the audit report indicates movement by the laboratory toward
fixing the identified quality assurance problems. 74

67

Id.
Id.
69
Arek Sarkissian II, Evidence Delay, Tucson Weekly, June 10, 2004.
70
AM. SOC’Y OF CRIME LAB. DIRS., supra note 15, at 21.
71
The ASCLS/LAB program requires the quality manual to contain or reference the documents or
policies/procedures pertaining, but not limited to, the following: (1) control and maintenance of
documentation of case records and procedure manuals, (2) validation of test procedures used, (3) handling
evidence, (4) use of standards and controls in the laboratory, (5) calibration and maintenance of equipment,
(6) practices for ensuring continued competence of examiners, and (7) taking corrective action whenever
analytical discrepancies are detected. Id. at 23-24.
72
Office of the Inspector General, Executive Summary, Compliance with Standards Governing
Combined DNA Index System Activities at the Arizona Department of Public Safety, Scientific Analysis
Bureau DNA Laboratory, Phoenix, Arizona, available at http://www.usdoj.gov/oig/grants/g6005009.htm
(last visited on June 12, 2006).
73
Id.
74
Id.
68

93

In addition to problems at the Bureau’s labs, the Phoenix Police Department laboratory
was found to have made errors in the DNA analysis of nine cases between August 2001
and May 2003. “Insufficiently trained lab technicians” were blamed for the errors. 75
It is clear that crime laboratories can and do make critical errors. Congress enacted The
Paul Coverdell Forensic Sciences Improvement Grant Program (“Coverdell Grant
Program”) to “improve the quality, timeliness, and credibility of forensic science services
for criminal justice purposes.” 76 Under the authority of the Coverdell Grant Program, the
Department of Justice provides funds to state and local governments to assist crime
laboratories and medical examiner offices with improving the following areas: Education
and Training, Accreditation/Certification, Equipment/Supplies, Facilities/Renovation,
and Staffing. 77 As enacted, the Coverdell Grant Program imposed certain requirements
on state and local governments seeking grant funds. For example, in order to qualify for
Coverdell funds, state or local governments had to show they had “developed a program
for improving the quality and timeliness of forensic science or medical examiner
services.” 78 In addition, applicants had to use “generally accepted laboratory practices
and procedures as established by accrediting organizations or appropriate certifying
bodies.” 79
To further ensure the reliability and credibility of forensic tests conducted by Coverdell
grant recipients, 80 Congress added a further eligibility requirement in 2004 when it
passed the Justice for All Act, which amended the Coverdell Grant Program and required
grant applicants to certify that:
[A] government entity exists and an appropriate process is in place to
conduct independent external investigations into allegations of serious
negligence or misconduct substantially affecting the integrity of the
forensic results committed by employees or contractors of any forensic
75

Carlos Miller, Phoenix Police Lab Errs on DNA 9 Cases Under Review After Mistakes Found, THE
ARIZ. REPUBLIC, May 6, 2003.
76
Paul Coverdell National Forensic Sciences Improvement Act of 2000, Pub. L. No. 106-561, codified at
42 U.S.C. 3797(j), et. seq.
77
National Institute of Justice, Coverdell National Forensic Sciences Improvement Grant Program,
available at http://www.ojp.gov/nij/topics/forensics/nfsia/welcome.html (last visited July 7, 2006).
78
Id.
79
Id.
80
Indeed, the legislative history of the Justice for All Act reveals testimony before Congress in which
Peter Neufeld of The Innocence Project argued for independent external investigation mechanisms and
observed:
One way vigilance can be achieved is by utilizing some of the same quality assurance
measures we employ in other institutions where health, safety, and security are at stake.
When the Challenger crashed and NASA initially suggested an internal audit, Congress
would not allow it. When the Enron scandal broke, the nation would not accept yet
another audit from Arthur Anderson. In fact, whenever there is evidence of serious
misconduct affecting the public, an independent external audit is obligatory. One of the
few notable exceptions to this fundamental principle, I am afraid, has been the state and
local criminal justice system.
Advancing Justice Through Forensic DNA Technology, Hearing Before the Subcommittee on Crime,
Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, Serial No.
46, 108th Cong. 36 (2003) (statement of Peter Neufeld, Co-Founder and Director of The Innocence Project).

94

laboratory system, medical examiner’s office, coroner’s office, law
enforcement storage facility, or medical facility in the State that will
receive a portion of the grant amount. 81
Nevertheless, a 2005 review conducted by the Department of Justice Office of the
Inspector General (OIG) concluded that the National Institute of Justice (NIJ), the DOJ
agency tasked with administering the grant program, did not enforce the independent
external investigation requirement. 82 So long as grant applicants signed the certification
that there was a government entity or process in place to conduct independent external
investigations into allegations of misconduct, the NIJ disbursed the funds. 83 The OIG
criticized the NIJ for failing to instruct the grant applicants on what kinds of agencies or
processes would suffice under the requirement. 84
The state administering agency for Coverdell grants is the Arizona Criminal Justice
Commission (ACJC). According to the NIJ website the ACJC received S207,752 in FY
2004 and $66,351 in FY 2003 in Coverdell funds. 85 Arizona received these funds even
though there is no government entity or process in place in Arizona to conduct
independent external investigations into crime laboratory misconduct or negligence.
As noted above, the State of Arizona is no stranger to crime laboratory testing errors.
Indeed, Ray Krone was convicted of first degree murder in 1992 and served ten years in
prison, in part, because a Phoenix Police Department (PPD) employee failed to test
crucial evidence that subsequently helped to exonerate Krone. 86 These failures also
contributed to the several million dollar settlement of Mr. Krone’s post-exoneration civil
rights suit. 87 Contamination from an unknown source of DNA surfaced in cases handled
by the Tucson Police Department Laboratory. 88 By no means exhaustive, the foregoing
examples illustrate the kinds of laboratory conduct that command independent oversight
of crime laboratories so that corrective action can be taken, improvements made, and
wrongful convictions avoided.
81

Justice for All Act of 2004, Pub. L. No. 108-405.
United States Department of Justice, Office of the Inspector General, Review of the Office of Justice
Programs’ Forensic Science Improvement Grant Program, at i, 21, (Dec. 2005), available at
http://www.usdoj.gov/oig/reports/OJP/e0602/final.pdf.
83
Id.
84
Id. at 9, 21.
85
See National Institute of Justice, NIJ Awards in 2003, NIJ Awards in 2004, available at
http://www.ojp.usdoj.gov/nij/funding.htm (last visited July 10, 2006). Additionally, according to the U.S.
Department of Justice, it awarded the Arizona Criminal Justice Commission in 2004 $376,622 for DNA
capacity enhancement programs and $430,047 for DNA forensic casework backlog reduction. National
Institute of Justice, NIJ Awards in 2004, available at http://www.ojp.usdoj.gov/nij/awards/2004.htm (last
visited July 10, 2006). Lastly, the Department of Justice reports that it provided the Phoenix Police
Department $993,500 in 2004 grants to improve criminal justice forensic services. See Press Release,
United States Department of Justice Office of Justice Programs, Department of Justice Awards $2.5 Million
to Arizona for President’s DNA Initiative and Crime-Solving Forensic Services (Sept. 21, 2004).
86
City Auditor Department Final Report, Police Crime Laboratory Review Observation No. 8—Forensic
Biology/DNA, July 9, 2004, at 13.
87
Paul Davenport, Arizona Lawmakers Apologize to Exonerated Man, THE PHILADELPHIA INQUIRER,
Feb. 21, 2006, at B5.
88
Robert Anglin, DNA Reliability Under Fire, THE ARIZ. REPUBLIC, Dec. 12, 2005, available at
http://www.azcentral.com/specials/special21/articles/1212dna12.html.
82

95

In the wake of well-publicized crime laboratory problems that have led to wrongful
convictions around the country, such as those in the Houston Police Department
laboratory, 89 states have began to respond by introducing legislation that creates crime
laboratory oversight commissions comprised of defense attorneys, prosecutors, judges,
forensic scientists, academics, and members of law enforcement. 90 Indeed, the Texas
legislature responded to its state crime lab problems by creating the Texas Forensic
Science Commission, “an example for the nation” according to the Innocence Project.91
In the absence of state action, one state high court has gone so far as to suggest, in an
opinion that addressed misconduct in the West Virginia police crime lab, that the state
remove the crime laboratory from the supervision of law enforcement and develop an
independent agency to oversee the crime lab. 92 To minimize the risk that wrongful
convictions occur, the State of Arizona should create an independent agency to oversee
its crime laboratories. The Arizona Criminal Justice Commission (ACJC) has suggested
that it could serve as the independent oversight body contemplated by the Coverdell
Grant Program. At present, however, the ACJC has no personnel qualified to perform
independent audits or reviews of crime laboratories. In addition, in order to comply with
the spirit of the Grant Program it would also be necessary to broaden the membership of
ACJC to include other interested stakeholders, including the public defender
organizations. Both steps could significantly improve public confidence in the operation
of Arizona’s crime laboratories.
With respect to medical examiner offices, we were unable to obtain sufficient
information to state with any degree of certainty whether any medical examiner officers
are currently accredited or have adopted standardized procedures for medical
examinations. Arizona law, however, requires that every medical examiner must be a
“licensed physician in good standing certified in pathology and skilled in forensic
pathology.” 93 Alternatively, if the county board of supervisors determines that the
appointment of a county medical examiner is not practical, it may establish a list of
licensed physicians who will be available to perform the duties required of a county
medical examiner, but the licensed physicians on the list do not need to be certified in
pathology nor skilled in forensic pathology. 94
Based on this information, the State of Arizona is only in partial compliance with
Recommendation #1.
89

See, e.g., Roma Khanna, Tests Find HPD’s Lab Data Wrong Once Again, Houston Chronicle, Feb. 15,
2005.
90
See,
e.g.,
Missouri
S.B.
768
(introduced
2006)
at
http://www.senate.mo.gov/06info/bts_web/Bill.aspx?SessionType=R&BillID=6677
(creating
an
independent Laboratory Oversight Committee with the power to investigate allegations of crime lab
misconduct).
91
Innocence Project, Junk Science, at http://www.innocenceproject.org/causes/junkscience.php
92
In the Matter of Renewed Investigation of the State Police Crime Laboratory, Serology Division, No.
32885,
2006
W.
Va.
LEXIS
51,
n.12.
Also
available
at
http://www.state.wv.us/wvsca/docs/spring06/32885.pdf.
93
AM. SOC’Y OF CRIME LAB. DIRS., supra note 15, at 23-24. For a list of the American Board of
Pathology requirements for certification and re-certification, see Requirements for Primary and
Subspecialty Certifications, American Board of Pathology, at http://www.abpath.org/ReqForCert.htm (last
visited on Oct. 5, 2005).
94
ARIZ. REV. STAT. § 11-592(A) (2006).

96

B. Recommendation #2
Crime laboratories and medical examiner offices should be adequately
funded.

The Bureau’s Scientific Analysis Program receives funding from twelve sources, seven
of which are appropriated by the State and five of which are not. The appropriated
funding sources include the General Fund, State Highway Fund, Crime Lab Assessment
Fund, DNA Fund, Highway User Revenue Fund, Highway Patrol Fund, and the Criminal
Justice Enhancement Fund. 95 Between fiscal year 2000 and fiscal year 2005, total
funding for the Scientific Analysis Program increased by 68.2%, from $8,429,600 to
$18,274,700. That funding was expected to increase an additional 8.9% in fiscal year
(FY) 2006 to $19,325,300. 96
Despite these funding increases, it appears that there has been a funding shortfall that has
made the timely testing of DNA evidence difficult, if not impossible. The number of
cases submitted for analysis to the Bureau increased 56% between FY 2000 and FY
2005, from 29,425 submissions to 45,916 submissions. Since FY 2000, there has been an
average increase of 9.31% per year in case submissions.97 At the same time, between FY
2000 and FY 2006, the number of appropriated positions allocated to crime labs has
increased by 30.7%, or thirty-one positions. When the new positions that have been
added to address new programs are excluded, the Bureau received an additional twentyone positions, or 20.8%, to address the increase in crime lab submissions. 98
Consequently, while the Bureau’s caseload has increased by 56%, staff has increased
only by 20.8%. The Bureau requested funding for an additional eleven positions in FY
2007 “to address the dramatic growth in submissions.” The Bureau identifies this as a
“modest request,” due to the fact that submissions likely will continue to increase at a
pace equal to or faster than the staffing level, but does not request more because “it
would be very challenging to recruit, hire, and train more than 11 new criminalists in
each year” 99 and because the increase in staff should allow the Bureau to “stem the tide”
as it “seeks to deploy new technologies that will allow [it] to operate more efficiently.” 100
In addition, as of June 2004, the Tucson laboratory had serious backlog in processing
evidence, including evidence relating to murder cases, sexual assault cases, and cases
going to trial. These high-priority cases took an average of 119 days to process. Susan
Shankes, the Tucson Police Department Crime Lab Superintendent, claimed that “We
really aren’t staffed right and don’t have the resources available.” 101

95

STAFF OF JOINT LEGISLATIVE BUDGET COMMITTEE, supra note 11.
Id.
97
Id.
98
Id.
99
ARIZ.
DEP’T
OF
PUBLIC
SAFETY,
FY
2007
DECISION
PACKAGES,
http://www.azdps.gov/news/DecisionPackagesFY2007.pdf (last visited Feb. 15, 2006).
100
Ariz. Dep’t of Public Safety, Fiscal Year 2007 Budget Request, available
http://www.azdps.gov/news/decisionPackages.asp (last visited Feb. 15, 2006).
101
Sarkissian, supra note 69.
96

97

at
at

As of January 1, 2005, all felons are required to submit DNA evidence for submission to
Arizona’s DNA database. 102 Because of state budget cuts, however, the Arizona
Department of Public Safety received only $1.6 million during the 2003 and 2004 fiscal
years to fund DNA testing, despite an initial legislative appropriation of $2 million a
year. As a result, the Department of Public Safety had only enough money to purchase
collection kits, hire some of the necessary staff, and have the DNA samples preserved
and stored. 103 In May 2004, approximately 60,000 samples were waiting to be analyzed.
Full funding was restored on July 1, 2004, 104 and Arizona received an additional $1.3
million in September 2004 from the federal government to eliminate casework and the
convicted offender backlog, improve crime lab capacity, provide DNA training, provide
post-conviction DNA testing, and conduct testing to identify missing persons. 105 Despite
this additional money, it is estimated between two and ten years may be needed for
crime-lab technicians to process the backlog and keep pace with the new samples that
arrive for processing. 106 We were unable to confirm whether the State of Arizona has
since been able to eliminate the backlog.
Given this information, it does not appear as if crime labs in the State of Arizona are
adequately funded. We were, however, unable to obtain sufficient information to
appropriately assess the adequacy of the funding provided to both crime laboratories and
medical examiner offices.

102

Judi Villa, DNA samples taxing Arizona , THE ARIZ. REPUBLIC, May 10, 2004.
Id.
104
Id. See also Program Summary Department of Public Safety Scientific Analysis (Crime Lab) (Sept. 19,
2005) (on file with author).
105
See Press Release, United States Department of Justice Office of Justice Programs, Department of
Justice Awards $2.5 Million to Arizona for President’s DNA Initiative and Crime-Solving Forensic
Services (Sept. 21, 2004).
106
Judi Villa, supra note 102.
103

98

CHAPTER FIVE
PROSECUTORIAL PROFESSIONALISM
INTRODUCTION TO THE ISSUE
The prosecutor plays a critical role in the criminal justice system. Although the
prosecutor operates within the adversary system, the prosecutor’s obligation is to protect
the innocent as well as to convict the guilty, to guard the rights of the accused as well as
to enforce the rights of the public.
Because prosecutors are decision makers on a broad policy level and preside over a wide
range of cases, they are sometimes described as “administrators of justice.” Each
prosecutor has responsibility for deciding whether to bring charges and, if so, what
charges to bring against the accused. S/he must also decide whether to prosecute or
dismiss charges or to take other appropriate actions in the interest of justice. Moreover,
in cases in which capital punishment can be sought, prosecutors have enormous
additional discretion deciding whether or not to seek the death penalty. The character,
quality, and efficiency of the whole system is shaped in great measure by the manner in
which the prosecutor exercises his or her broad discretionary powers.
While the great majority of prosecutors are ethical, law-abiding individuals who seek
justice, one cannot ignore the existence of prosecutorial misconduct and the impact it has
on innocent lives and society at large. Between 1970 and 2004, individual judges and
appellate court panels cited prosecutorial misconduct as a factor when dismissing charges
at trial, reversing convictions or reducing sentences in at least 2,012 criminal cases,
including both death penalty and non-death penalty cases. 1
Prosecutorial misconduct can encompass various actions, including but not limited to
failing to disclose exculpatory evidence, abusing discretion in filing notices of intent to
seek the death penalty, racially discriminating in making peremptory challenges,
covering-up and/or endorsing perjury by informants and jailhouse snitches, or making
inappropriate comments during closing arguments. 2 The causes of prosecutorial
misconduct range from an individual’s desire to obtain a conviction at any cost to lack of
proper training, inadequate supervision, insufficient resources, and excessive workloads.
In order to curtail prosecutorial misconduct and to reduce the number of wrongly
convicted individuals, federal, state, and local governments must provide adequate
funding to prosecutors’ offices, adopt standards to ensure manageable workloads for
prosecutors, and require that prosecutors scrutinize cases that rely on eyewitness
identifications, confessions, or testimony from witnesses who receive a benefit from the
police or prosecution. Perhaps most importantly, there must be meaningful sanctions,
both criminal and civil, against prosecutors who engage in misconduct.
1

See STEVE WEINBERG, CENTER FOR PUBLIC INTEGRITY, BREAKING THE RULES: WHO SUFFERS WHEN A
PROSECUTOR
IS
CITED
FOR
MISCONDUCT?
(2004),
available
at
http://www.publicintegrity.org/pm/default.aspx?act=main (last visited on July 7, 2006).
2
Id.; see also Innocence Project, Police and Prosecutorial Misconduct, at
http://www.innocenceproject.org/causes/policemisconduct.php (last visited on July 7, 2006).

99

I. FACTUAL DISCUSSION
A. Prosecution Offices
1. County Attorneys
The State of Arizona is divided into fifteen counties, 3 each of which has an elected
county attorney 4 who serves as the county’s public prosecutor. 5 To be eligible for the
office of county attorney, one must be an attorney at law who is licensed and in good
standing in the State of Arizona. 6 County attorneys are required to, among other things:
(1)
(2)

(3)

(4)

(5)
(6)

Attend the superior and other courts within the county and conduct, on
behalf of the State, all prosecutions for public offenses;
Institute proceedings before magistrates for the arrest of persons charged
with or reasonably suspected of public offenses when the county attorney
has information that the offenses have been committed;
When not engaged in criminal proceedings in the superior court, attend
upon the magistrates in cases of arrest when required by them, and attend
before and give advice to the grand jury;
Draw indictments and informations, defend actions brought against the
county and prosecute actions to recover recognizances forfeited in courts
of record and actions for recovery of debts, fines, penalties, and forfeitures
accruing to the State or county;
Keep a register of all official business, and enter in it every action
prosecuted, criminal or civil, and of the proceedings therein;
Upon receipt of an appellant’s brief in a criminal appeal, furnish the
attorney general with a true statement of the facts in the case, together
with the available authorities and citations that are responsive to the
assignments or specifications of error. 7

If the county attorney fails to attend any session of the Superior Court at which a criminal
action is to be tried, either in person or by deputy, the court may designate a different
person to perform the county attorney’s duties in his/her absence. 8
Although there are no statewide procedures that govern the operation of county attorneys’
offices beyond those discussed above, the State of Arizona has established the “Arizona
Prosecuting Attorneys’ Advisory Council” 9 “to assist in the coordination of the duties of
the prosecuting attorneys . . . and their staffs.” 10
2. Office of the Attorney General
3

See
U.S.
Census
Bureau,
Arizona
County
Map,
available
http://quickfacts.census.gov/qdf/maps/arizona_map.html (last visited July 7, 2006).
4
ARIZ. CONST. art. XII, § 3 (2006).
5
ARIZ. REV. STAT. § 11-532(A) (2006).
6
ARIZ. REV. STAT. § 11-531(A) (2006).
7
ARIZ. REV. STAT. § 11-532(A), (B) (2006).
8
ARIZ. REV. STAT. § 11-534 (2006).
9
See infra page 103 for additional information on The Prosecuting Attorneys’ Advisory Council.
10
ARIZ. REV. STAT. § 41-1830.01 (2006).

100

at

The State of Arizona elects an Attorney General every four years. 11 To be eligible to
serve as Attorney General, one must have been a United States citizen for at least ten
years, resided in the State of Arizona for at least five years preceding the election, and be
at least twenty-five years old when elected. 12 Further, the Attorney General must have
been a practicing attorney before the Arizona Supreme Court for at least five years prior
to taking office. 13 The Attorney General and his/her assistants must work for the Office
of the Attorney General full-time and may not engage in the private practice of law or in
any other occupation that conflicts with their duties. 14
The Attorney General serves as the State of Arizona’s chief legal officer and is in charge
of and directs the Department of Law.15 The Attorney General must, among other things,
establish administrative and operational policies and procedures within his/her
department and approve long-range plans for departmental programs and coordinate the
legal services required by other departments or other state agencies. 16 In addition, the
Attorney General may:

11

ARIZ. CONST. art. V, § 1.
ARIZ. CONST. art. V, § 2.
13
ARIZ. REV. STAT. § 41-191 (2006).
14
ARIZ. REV. STAT. § 41-191(B) (2006). This prohibition does not apply to special assistants, except that
special assistants may not engage in any private litigation in which the State or an office of the State in
his/her official capacity is a party. Assistant attorneys general may, but are not required to, represent
private clients in pro bono or private civil matters under the following circumstances:
12

(1) The representation will be conducted exclusively during off hours or while on leave and the
attorney will not receive any compensation for such services;
(2) The client is not seeking an award of attorney fees for the services;
(3) The services are for an individual in need of personal legal services who does not have the
financial resources to pay for the professional services or for a nonprofit, tax exempt charitable
organizations formed fro the purpose of providing social services to individuals and families;
(4) The representation will not interfere with the performance of any official duties;
(5) The subject matter of pro bono representation is outside of the area of practice to which the
attorney is assigned in the attorney general’s office and the activity will not appear to create a
conflict of interest;
(6) The activity will not reflect adversely on this state of any of its agencies;
(7) The assistant attorney general’s position will not influence or appear to influence the outcome of
any matter;
(8) The activity will not involve assertions that are contrary to the interest or position of the State of
Arizona of any of its agencies;
(9) The activity does not involve a criminal matter or proceeding or any matter in which the State of
Arizona is a party of has a direct or substantial interest;
(10) The activity will not utilize resources that will result in a cost to the State of any of its agencies;
and
(11) The attorney’s supervisor may require the attorney to submit a prior written request to engage in
pro bono work which includes a provision holding the agency harmless from any of the work
undertaken by the attorney.
Id.
The Attorney General also may employ attorneys for particular cases on a fixed fee basis who are exempt
from the restrictions imposed on regular or special assistants. ARIZ. REV. STAT. § 41-192(C) (2006).
15
ARIZ. REV. STAT. § 41-192(A) (2006).
16
Id.

101

(1)

(2)
(3)
(4)

Organize the Office of the Attorney General into bureaus, subdivisions, or
units as s/he deems most efficient and economical and consolidate or
abolish them;
Adopt rules for the orderly conduct of the business of the Office of the
Attorney General;
Employ and assign assistant attorneys general and other employees
necessary to perform the functions of the Office; and
Compromise or settle any action or claim by or against the State of
Arizona. 17

The Office of the Attorney General is comprised of the Attorney General and the
subdivisions of the department. 18 The office must, among other things:
(1)
(2)

(3)
(4)

(5)

(6)

(7)

Prosecute and defend in the Supreme Court all proceedings in which the
State or an officer of the State in his/her official capacity is a party;
At the direction of the Governor or when deemed necessary by the
Attorney General, prosecute and defend any proceeding in a state court
other than the Supreme Court in which the State or an officer of the State
is a party or has an interest;
Represent the State in any action in a federal court;
Exercise supervisory powers over county attorneys in matters pertaining to
that office and require reports relating to the public business of those
matters;
At the direction of the Governor, or when deemed necessary, assist the
county attorney of any county in the discharge of the county attorney’s
duties;
Maintain a docket of all proceedings in which the Attorney General is
required to appear, showing the condition thereof, the proceedings therein,
the proceedings subsequent to judgment, and the reasons for any delay;
and
Upon demand by the legislature, or either house or any member of the
legislature, any public officer of the State or a county attorney, render a
written opinion upon any question of law relating to their offices. 19

The Capital Litigation Section of the Office of the Attorney General’s Criminal Division
handles all appellate and post-conviction proceedings involving death-row inmates in
Arizona, including direct appeals to the Arizona Supreme Court and the United States
Supreme Court; state post-conviction relief proceedings in the trial court and the Arizona
Supreme Court; and federal habeas proceedings in federal district court, the United States
Court of Appeals for the Ninth Circuit, and the United States Supreme Court. 20 The
Capital Litigation Section also assists county attorneys with advice and research in
pending trial matters, and presents an annual death penalty seminar for prosecutors. 21
17

ARIZ. REV. STAT. § 41-192(B) (2006).
ARIZ. REV. STAT. § 41-193(A) (2006).
19
Id.
20
Arizona Attorney General, About the Office, at http://www.azag.gov/AboutOffice (last visited July 7,
2006).
21
Id.
18

102

B. The Arizona Prosecution Attorneys’ Advisory Council
The State of Arizona established the Arizona Prosecution Attorneys’ Advisory Council 22
to “assist in the coordination of the duties of the prosecuting attorneys of this [S]tate and
their staffs” 23 by:
(1)

(2)
(3)
(4)
(5)
(6)

(7)

(8)

Establishing rules and regulations for the government and conduct of the
council, including meeting times, places, and matters to be placed on the
agenda of each meeting;
Preparing manuals of procedure;
Giving assistance in the preparation of trial briefs, forms, and instructions;
Conducting research and studies that would be of interest and value to all
prosecuting attorneys and their staffs;
Providing training programs for prosecuting attorneys and other criminal
justice personnel;
Maintaining liaison contact with study commissions and agencies of all
branches of local, state, and federal government that will be of benefit to
law enforcement and the fair administration of justice in the State;
Establishing training standards for prosecuting attorneys and assisting in
meeting those standards by promulgating rules and procedures relating to
such standards; and
Filing an annual report of financial receipts for prosecuting attorneys and
expenditures with the Governor, Speaker of the House, and President of
the Senate. 24

The Arizona Prosecution Attorneys’ Advisory Council is comprised of all county
attorneys, the Attorney General or his/her designee, the Dean of the Arizona State
University School of Law or the University of Arizona Law School, the chief municipal
or city prosecutor of each city with a population of over 250,000, one full-time municipal
prosecutor from a municipality with a population of less than 250,000 appointed by the
Governor, and the Chief Justice of the Arizona Supreme Court or his/her designee.25
Meetings must be held at least quarterly or upon the call of the Chair or by the written
request of five members of the council or by the governor. The Council may employ an
Executive Director and other staff, including clerical assistants, who are necessary to
fulfill the purposes of the Council.26 Each member of the council has a three-year term,
unless s/he leaves the public office that qualified him/her for the appointment. 27 The
Council is instructed by the Arizona Revised Statutes to “endeavor to minimize costs of
administration, including utilization of training facilities already in existence and
available, so that the greatest possible proportion of the funds available to it shall be
expended for the purposes of providing training for prosecuting attorneys.” 28
22
23
24
25
26
27
28

ARIZ. REV. STAT. § 41-1830 (2006).
ARIZ. REV. STAT. § 41-1830.01 (2006).
Id.
ARIZ. REV. STAT. § 41-1830(A) (2006).
Id.
ARIZ. REV. STAT. § 41-1830(B) (2006).
ARIZ. REV. STAT. § 41-1830.02 (2006).

103

C. The Arizona Rules of Professional Conduct
The Arizona Supreme Court promulgated the Arizona Rules of Professional Conduct to
address the professional and ethical responsibilities of prosecutors. 29
The Arizona Rules of Professional Conduct state that “[a] prosecutor has the
responsibility of a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence.” 30 To
ensure that these obligations are met, Rule 3.8 of the Arizona Rules of Professional
Conduct requires that a prosecutor in a criminal case comply with a number of rules,
including:
(1)
(2)

(3)
(4)

(5)

(6)

Refraining from prosecuting a charge that the prosecutor knows is not
supported by probable cause;
Making reasonable efforts to assure that the accused has been advised of
the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;
Not seeking to obtain from an unrepresented accused a waiver of
important pretrial rights, such as the right to a preliminary hearing;
Making timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense, and, in connection with sentencing, disclosing to the
defense and to the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;
Not subpoenaing a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor
reasonably believes that (1) the information sought is not protected from
disclosure by any applicable privilege; (2) the evidence sought is essential
to the successful completion of any ongoing investigation or prosecution;
and (3) there is no other feasible alternative to obtain the information; and
Except for statements that are necessary to inform the public of the nature
and extent of the prosecutor's action and that serve a legitimate law
enforcement purpose, refraining from making extrajudicial comments that
have a substantial likelihood of heightening public condemnation of the
accused and exercising reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or associated
with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making. 31

The Arizona Rules of Professional Conduct also require all attorneys, including
prosecutors, to report professional misconduct. Rule 8.3 of the Arizona Rules of
Professional Conduct specifically states, “[a] lawyer who knows that another lawyer has
29
30
31

ARIZ. R. SUP. CT. 42.
ARIZ. R. OF PROF’L CONDUCT 3.8 cmt.
ARIZ. R. OF PROF’L CONDUCT 3.8.

104

committed a violation of the Rules of Professional Conduct that raises a substantial
question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority, except as otherwise provided
in these Rules or by law.” 32
The power to investigate grievances and discipline members of the State Bar, including
prosecutors, is vested in the Disciplinary Commission (Commission) of the Arizona
Supreme Court. 33 Grounds for discipline include the violation of a rule of professional
conduct in effect in any jurisdiction; violation of a canon of judicial conduct; willful
violation of any rule or any order of the court of a state, territory, or district of the United
States; evading service or refusing to cooperate with officials and staff of the State Bar, a
hearing officer, the commission or conservator appointed; violation of a condition of
probation or diversion; failure to furnish information; violation of a condition of
admission; conviction of a crime; and discipline imposed in another jurisdiction. 34
A disciplinary proceeding may be initiated upon the State Bar receiving a charge against
a respondent. 35 When a disciplinary proceeding is initiated, Bar Counsel 36 first will
32
33
34
35
36

ARIZ. R. OF PROF’L CONDUCT 8.3.
ARIZ. SUP. CT. R. 49(a).
ARIZ. SUP. CT. R. 53(a)–(i).
ARIZ. SUP. CT. R. 54(a).
Bar Counsel is responsible for, among other things:
(1) Investigating all information coming to the attention of the state bar that, if true, would be grounds
for discipline or transfer to disability inactive status;
(2) Recommending dispositions prior to formal proceedings, and if deemed to be advisable,
recommending any discipline in formal proceedings;
(3) Promptly notifying the complainant and respondent of the disposition of each matter;
(4) Representing the state bar in and prosecuting discipline and reinstatement proceedings and
proceedings for transfer to or from disability inactive status before hearing officers, the
commission and the Arizona Supreme Court, and prosecuting contempt proceedings in the
appropriate forum;
(5) In appropriate cases dismissing proceedings if, after conducting a screening investigation, there is
no probable cause to believe that misconduct or incapacity exists;
(6) Monitoring and supervising respondents during a probationary or diversionary term, reporting
material violations of the terms of probation or diversion to the imposing entity, and preparing and
forwarding a report to the imposing entity regarding respondent’s completion or non-completion
of the imposed terms; and
(7) Monitoring and supervising conditional admittees during the conditional admission period.

ARIZ. SUP. CT. R. 51(b). Acting under the authority of the State Bar of Arizona Board of Governors, the
Chief Bar Counsel will employ and supervise staff that is needed for the performance of all discipline
functions, including supervision of volunteer bar counsel, including the screening of all information coming
to the attention of the State Bar relating to conduct by a member or non-member, and in general oversee
and direct the prosecution of discipline cases and the administration of disability, reinstatement matters and
contempt proceedings, including compiling statistics to aid in the administration of the system. ARIZ. SUP.
CT. R. 51(a)(1). The Chief Bar Counsel also must transmit notice of discipline, transfers to or from
disability inactive status, reinstatements, and judgments of conviction to the disciplinary enforcement
agency of any other jurisdiction in which the respondent is known to be admitted; transmit notice of all
public discipline imposed against a respondent, transfers to or from disability inactive status,
reinstatements, and certified copies of any criminal conviction to the National Discipline Data Bank
maintained by the American Bar Association Standing Committee on Professional Discipline; cause notices
of orders or judgments of censure, suspension, disbarment, transfers to and from disability status, and
reinstatement to be published in the Arizona Attorney or another usual periodic publication of the State

105

evaluate all of the information about the alleged lack of professionalism, misconduct, or
incapacity. 37 If the lawyer is subject to the jurisdiction of the Arizona Supreme Court
and the information alleges facts which, if true, would constitute misconduct or
incapacity, the bar counsel must conduct a screening investigation.38 After the screening
investigation, bar counsel may recommend dismissal, diversion, a stay, informal
reprimand, probation, restitution, assessment of costs and expenses, the filing of a
complaint, a petition for transfer to disability inactive status, or with the consent of the
respondent, any other sanction. 39
If, after conducting a screening investigation, there is no probable cause to believe that
misconduct or incapacity exists, bar counsel may dismiss a discipline proceeding by
filing a notice of dismissal with the State Bar. 40 If a formal complaint is filed, the
recommendations of a hearing officer will proceed before the Commission for review if

Bar, and shall make such notices available to a newspaper of general circulation in each county in which
the lawyer maintained an office for the practice of law; and promptly advise all courts in Arizona or orders
or judgments of suspension, disbarment, reinstatement, and transfers to or from disability inactive status.
ARIZ. SUP. CT. R. 51(a)(2). In addition, Chief Bar Counsel must petition the appropriate court to take such
action as may be indicated in order to protect the interests of the public, respondent, and respondent’s
clients. ARIZ. SUP. CT. R. 51(a)(2)(D).
37
ARIZ. SUP. CT. R. 54(b). If the lawyer is not subject to the jurisdiction of the Arizona Supreme Court,
Bar Counsel must refer the information to the appropriate entity in the jurisdiction in which the lawyer is
admitted to practice law. ARIZ. SUP. CT. R. 54(b)(1)(A). If the allegations would not constitute misconduct
or incapacity, even if true, Bar Counsel will close the matter and may refer it to the Peer Review or Fee
Arbitration Committee. ARIZ. SUP. CT. R. 54(b)(1)(B). If the facts asserted in the charge indicate a
violation that does not involve deceit, dishonesty, or actual harm to a client, even if true, Bar Counsel may
refer the matter to mediation or diversion or take other appropriate action without conducting a full
screening investigation. ARIZ. SUP. CT. R. 54(b)(1)(C). In this situation, the respondent has the right to
reject referral of the matter to mediation or diversion and may demand a full screening investigation and a
probable cause determination. Id.
38
ARIZ. SUP. CT. R. 54(b)(1)(D).
39
ARIZ. SUP. CT. R. 54(b)(2). All investigations are conducted by staff bar counsel or staff examiners.
Id.
40
ARIZ. SUP. CT. R. 54(b)(3). If Bar Counsel recommends a disposition other than dismissal, the
recommendation will be reviewed by the panelist or the panelist’s designee. ARIZ. SUP. CT. R. 54(b)(4).
The panelist or designee may approve, disapprove, or modify the recommendation and must file the
decision with the State Bar. Id. Bar Counsel may appeal a decision to disapprove or modify Bar Counsel’s
recommendation to an appeal panel composed of three members from the State Bar Board of Governors.
The appeal panel must either approve Bar Counsel’s recommendation, approve the action of the first
reviewing member, or require any other action that might have been recommended by Bar Counsel. Id. A
decision of the panelist or, if the decision is appealed by Bar Counsel, a decision of the appeal panel, will
be final with respect to dismissal, diversion, stay, informal reprimand, assessment of costs and expenses,
probation, restitution, and the filing of formal discipline or disability proceedings. ARIZ. SUP. CT. R.
54(b)(5). Within ten days of service of an order or diversion, stay, informal reprimand, probation,
restitution, or assessment of costs and expenses, the respondent has the right to demand that a formal
proceeding be instituted. Id. If a formal proceeding is instituted, the order will be vacated and the matter
disposed of in the same manner as any other matter instituted before a hearing officer. A recommendation
of any sanction that is consented to by the respondent, before or while the matter is pending before the
panel, other than those made final by decision of the panelist or panel, will be submitted directly to a
hearing officer for review. Id. Bar Counsel may refer a matter to the Peer Review Committee, the Fee
Arbitration Committee, or to mediation after the probable cause panelist has dismissed the discipline
proceeding. ARIZ. SUP. CT. R.54(b)(6). The probable cause panelist will enter an order dismissing
discipline proceedings following an agreement reached in mediation by the respondent and complainant.
ARIZ. SUP. CT. R. 54(b)(7).

106

the recommended sanction includes disbarment, suspension or censure, or in the case of
an appeal, upon filing a notice of appeal. 41
The Commission is responsible for reviewing findings, conclusions, and
recommendations of all hearing officers 42 subject to review with respect to any discipline
matters, petitions for transfer to and from disability inactive status, and applications for
reinstatement, and in appropriate cases preparing and forwarding to the court its own
findings, conclusions, and recommendations together with the record of the proceedings;
imposing discipline, holding as many meetings per year at such times and places as it
may determine, or as otherwise directed by the court; exercising any other duties
delegated to it by the court; and conducting proceedings and issuing orders of contempt
relating to violations of orders that are final with the Commission. 43
Upon appeal of the respondent, the Supreme Court may review cases in which the
Commission report recommends censure, suspension, disbarment, reinstatement or denial
of reinstatement. 44
D. Relevant Prosecutorial Responsibilities
1. Notice of Intent to Seek the Death Penalty
The State of Arizona grants county attorneys the discretion to seek the death penalty. If a
prosecutor decides to seek a death sentence, s/he must file a notice of intent to seek the
death penalty within sixty days of the defendant’s arraignment 45 and must provide notice
of the aggravating circumstances s/he believes to be present. 46 Notices of intent may be
withdrawn, however. 47
The Pima County Attorney’s Office, the Maricopa County Attorney’s Office, and the
Office of the Attorney General have “Capital Case Panels” that decide, subject to the
county attorney or Attorney General’s approval, whether to file a notice of intent to seek

41

ARIZ. SUP. CT. R. 58(a).
The Arizona Supreme Court, upon recommendation of the Commission, may appoint a lawyer who has
been an active member for at least seven years to serve as a hearing officer. ARIZ. SUP. CT. R. 50(a).
Hearing officers have statewide jurisdiction over proceedings on complaints of misconduct, applications for
reinstatement, petitions for transfer to and from disability inactive status, and any other matters designated
by the court. ARIZ. SUP. CT. R. 50(c)(1). Hearing officers must prepare findings of fact and conclusions of
law, issue orders, impose discipline, and in appropriate cases, prepare and forward the findings,
conclusions, and recommendations, along with the record, to the Commission. ARIZ. SUP. CT. R. 50(c)(2),
(3). Hearing officers are appointed for three year terms, may serve consecutive terms, and may be
terminated at any time by the court. ARIZ. SUP. CT. R. 50(a), (b).
43
ARIZ. SUP. CT. R. 49(c).
44
ARIZ. SUP. CT. R. 59(a).
45
ARIZ. R. CRIM. P. 15.1(i)
46
ARIZ. REV. STAT. § 13-703.01(B) (2005); ARIZ. R. CRIM. P. 15.1(i)
47
See, e.g., State v. Cabanas-Salgado, 92 P.3d 421, 422 (Ariz. App. Div. 2003) (“Cabanas-Salgado
waived his right to a jury trial and, in exchange for dismissal of the State's notice of intent to seek the death
penalty, stipulated to the admissibility of the transcripts from Flores-Zevada's trial arising from the same
incident.”).
42

107

the death penalty. 48 The Panel is comprised of the County Attorney, the Chief Criminal
Deputy, the Chief Trial Counsel, and five senior lawyers from the Criminal Section of the
Office, all of whom have prosecuted capital cases. The Capital Case Panel operates by
consensus, subject to the overriding authority of the county attorney. 49 According to
Rick Unlkesbay, Chief Trial Deputy of the Pima County Attorney’s Office, the Panel
considers the existence of any aggravating and mitigating circumstances, their relative
strengths, the quality of proof for the underlying offense, and the facts of the case. The
Panel also considers the opinion of the victim’s family. 50
2. Plea Bargaining
There is no right to plea bargain under the Arizona Constitution and the prosecutor may
proceed to trial if s/he chooses. 51
The Pima County Attorney’s Office “Capital Case Panel” makes all decisions regarding
plea bargains in capital cases, subject to the county attorney’s approval. If a death notice
is filed, there is a presumption that the case will go to trial and the death penalty will be
sought. 52
3. Discovery
a. Discovery Requirements
State and federal law provides that defendants are entitled to all exculpatory information
or evidence. 53 The prosecutor “is not required to deliver his[/her] entire file to defense
counsel, but is required to disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.” 54 In capital cases, this means the prosecution
must turn over evidence that would be mitigating at the penalty phase of the trial, in
addition to evidence that goes toward guilt, 55 including the disclosure of impeachment
evidence which could be used to show bias or interest on the part of a key State witness.
Accordingly, the State is under a duty to reveal any [deal or] agreement, even an informal
one, with a witness concerning criminal charges pending against that witness. 56 A
prosecutor must not only disclose the evidence of which s/he is aware, but also
“favorable evidence known to the others acting on the government’s behalf,” even if the
prosecutor is not personally aware of its existence. 57
48

Telephone Interview with Rick Unlkesbay, Chief Trial Deputy, Pima County Attorney’s Office; Email Interview with Kent Cattani, Chief Counsel of the Capital Litigation Section, Arizona Attorney
General's Office (July 11, 2006).
49
Id.
50
Id.
51
State v. Donald, 10 P.3d 1193, 1200 (Ariz. Ct. App. 2000).
52
Telephone Interview with Rick Unlkesbay, Chief Trial Deputy, Pima County Attorney’s Office.
53
This is known as Brady material. Brady v. Maryland, 373 U.S. 83 (1963); see also Ariz. R. OF PROF’L
CONDUCT 3.8(d).
54
U.S. v. Bagley, 473 U.S. 667, 675 (1985).
55
Green v. Alabama, 442 U.S. 95 (1979); State v. Bracy, 703 P. 2d 464, 471 (Ariz. 1985) (“The United
States Constitution requires the prosecution to disclose to a defendant information that would tend to
absolve the defendant of guilt or mitigate his punishment.”).
56
Giglio v. United States, 405 U.S. 150, 154-55 (1972).
57
Kyles v. Whitley, 514 U.S. 419, 439-39 (1995).

108

Arizona courts have held that there is no constitutional right to discovery in criminal
cases. 58 As a rule, at the arraignment or preliminary hearing, defendants are entitled to
discovery of all reports that were in the possession of the prosecutor at the time of filing
that contain all existing original and supplemental reports prepared by a law enforcement
agency in connection with the particular crime with which the defendant is charged,
along with the names and addresses of experts who have personally examined a
defendant or any evidence in the particular case, together with the results of physical
examinations and of scientific tests, experiments or comparisons that have been
completed. 59
Further, the prosecutor must make the following material and information within the
prosecutor’s possession or control available to the defendant:
(1)

(2)
(3)

(4)

(5)

(6)
(7)
(8)

(9)

(10)
(11)

The names and addresses of all people who the prosecutor intends to call
as witnesses in the case-in-chief together with their relevant written or
recorded statements;
All statements of the defendant and of any person who will be tried with
the defendant;
All then existing original and supplemental reports prepared by a law
enforcement agency in connection with the particular crime with which
the defendant is charged;
The names and addresses of experts who have personally examined a
defendant or any evidence in the particular case, together with the results
of physical examinations and of scientific tests, experiments, or
comparisons that have been completed;
A list of all papers, documents, photographs or tangible objects that the
prosecutor intends to use at trial or which were obtained from or
purportedly belong to the defendant;
A list of all prior felony convictions of the defendant which the prosecutor
intends to use at trial;
A list of all prior acts of the defendant which the prosecutor intends to use
to prove motive, intent, or knowledge or otherwise use at trial;
All then existing material or information which tends to mitigate or negate
the defendant’s guilt as to the offense charged, or which would tend to
reduce the defendant’s punishment;
Whether there has been any electronic surveillance of any conversations to
which the defendant was a party, or of the defendant’s business or
residence;
Whether a search warrant has been executed in connection with the case;
and
Whether the case has involved an informant, and, if so, the informant’
identity, if the defendant is entitled to know either or both of these facts. 60

58

State v. O’Neil, 836 P.2d 393, 395 (Ariz. Ct. App. 1991); see also State ex rel. Thomas v. Foreman
118 P.3d 1117, 1121 (Ariz. Ct. App. 2005).
59
ARIZ. R. CRIM. P. 15.1(a).
60
ARIZ. R. CRIM. P. 15.1(b).

109

The State also must make available to the defendant at least thirty days before trial, or
thirty days after a defense request, a list of the prior felony convictions of witnesses who
the prosecutor intends to call at trial, along with a list of the prior felony convictions that
the prosecutor intends to use to impeach any disclosed defense witness at trial. 61
Upon request from the defense, and within thirty days of such request, the prosecutor
must make the following available to the defendant for examination, testing, and
reproduction:
(1)

(2)
(3)

Any specified items contained in the list of papers, documents,
photographs, or tangible objects that the prosecutor intends to use at trial
or which were obtained from or purportedly belong to the defendant;
Any 911 calls existing at the time of the request that can reasonably be
ascertained by the custodian of the record to be related to the case; and
Any completed written reports, statements, and examination notes made
by experts in connection with the particular case. 62

The prosecutor’s obligation to disclose is not simply applied to material and information
in his/her possession. Instead, this obligation extends to material and information in the
possession or control of members of the prosecutor’s staff, any law enforcement agency
which has participated in the investigation of the case and that is under the prosecutor’s
direction or control, or any other person who has participated in the investigation or
evaluation of the case and who is under the prosecutor’s direction or control. 63
If the defendant shows that s/he has substantial need in the preparation of his/her case for
material or information not otherwise covered by the discovery rules, and the defendant is
unable without undue hardship to obtain the substantial equivalent by other means, the
court may order that information made available.64
The prosecutor also must disclose the names and addresses of the people who the
prosecutor intends to call as rebuttal witnesses together with their relevant written or
recorded statements. 65
The prosecutor must provide the defendant the additional following pieces of information
within thirty days of filing a notice of intent to seek the death penalty:
(1)

(2)

61
62
63
64
65

The names and addresses of all people who the prosecutor intends to call
as witnesses to support each identified aggravating circumstance at the
aggravation hearing, together with any written or recorded statements of
the witness;
The names and addresses of experts who the prosecutor intends to call to
support each identified aggravating circumstance at the aggravation
hearing, together with any written or recorded statements of the witness;

ARIZ. R. CRIM. P. 15.1(d).
ARIZ. R. CRIM. P. 15.1(e).
ARIZ. R. CRIM. P. 15.1(f).
ARIZ. R. CRIM. P. 15.1(g).
ARIZ. R. CRIM. P. 15.1(h).

110

(3)

(4)
(5)

(6)

(7)
(8)

A list of any and all papers, documents, photographs, or tangible objects
that the prosecutor intends to use to support each identified aggravating
circumstance at the aggravation hearing;
All material or information that might mitigate or negate the finding of an
aggravating circumstance or mitigate the defendant’s culpability;
The names and addresses of all people who the prosecutor intends to call
as rebuttal witnesses on each identified aggravating circumstance, together
with any written or recorded statements of the witness;
The names and addresses of all people who the state intends to call as
witnesses at the penalty hearing, together with any written or recorded
statements of the witness;
The names and addresses of experts who may be called at the penalty
hearing together with any reports prepared by the expert; and
A list of any and all papers, documents, photographs, or tangible objects
that the prosecutor intends to use during the aggravation and penalty
hearings. 66

The State has a continuing duty to make additional disclosures whenever new or different
information subject to disclosure is discovered. 67
b. Challenges to Discovery Violations
Rule 15.7 of the Arizona Rules of Criminal Procedure provides for relief when either the
prosecution or the defense fails to make a required disclosure. “[T]he propriety of a
given sanction for a discovery violation is largely within the discretion of the trial
judge.” 68 The judge must order disclosure and impose any sanction s/he finds
appropriate, unless the judge finds that the failure to comply was harmless or that the
information could not have been disclosed earlier even with due diligence and the
information was disclosed immediately upon its discovery. 69 All orders for sanctions
must take into account the significance of the information that was not disclosed, the
impact of the sanction on the party and the victim, and the stage of the proceedings at
which the disclosure was ultimately made. 70 Possible sanctions include, but are not
limited to:
(1)
(2)
(3)
(4)
(5)

66
67
68
69
70

Precluding or limiting the calling of a witness, use of evidence or
argument in support of or in opposition to a charge or defense;
Dismissing the case with or without prejudice;
Granting a continuance or declaring a mistrial when necessary in the
interests of justice;
Holding a witness, party, person acting under the direction or control of a
party, or counsel in contempt;
Imposing costs of continuing the proceedings; and

ARIZ. R. CRIM. P. 15.1(i).
ARIZ. R. CRIM. P. 15.6(a).
State v. Krone, 897 P. 2d 621, 624 (Ariz. 1995).
ARIZ. R. CRIM. P. 15.7(a).
Id.

111

(6)

Any other appropriate sanction. 71

Following the trial, a defendant may obtain relief for the prosecution’s failure to disclose
Brady 72 material at trial by proving three elements: (1) the evidence at issue is favorable
to the accused because it is either exculpatory or impeachment material; 73 (2) the
evidence must have been suppressed by the State, either willfully or inadvertently; 74 and
(3) prejudice resulted from the failure to disclose the evidence. 75
The trial court’s failure to take corrective action based on a discovery violation
committed by the State is reviewed under an abuse of discretion standard and will not be
disturbed absent a showing of prejudice. 76
4. Limitations on Arguments
a. Substantive Limitations
The Arizona Supreme Court has stated that “excessive and emotional language is the
bread and butter weapon of counsel’s forensic arsenal” 77 and therefore “attorneys must
be given wide latitude in their arguments to the jury.” 78 Despite this latitude, attorneys
have exceeded their discretion when comments are made that “inflame the minds of
jurors with passion or prejudice or influence the verdict in any degree.” 79
For example, prosecutors may not “impugn the integrity or honesty of opposing
counsel,” 80 appeal to the jurors' fears that a not guilty by reason of insanity verdict will
result in the defendant's release, 81 convey his/her personal belief about the credibility of a
witness, 82 “direct the jurors' attention to the defendant's exercise of his[/her] fifth
amendment privilege” against self-incrimination, 83 or invoke biblical passages that are

71

Id.
Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963).
73
U.S. v. Bagley, 473 U.S. 667, 676 (1985).
74
U.S. v. Agurs, 427 U.S. 97, 110 (1976).
75
Bagley, 473 U.S. at 678.
76
State v. Nordstrom, 25 P.3d 717, 739 (Ariz. 2001).
77
State v. Gonzalez, 466 P.2d 388, 391 (Ariz. 1970).
78
State v. Thomas, 275 P.2d 408, 419 (Ariz. 1954), aff’d, 356 U.S. 390; State v. Neil, 428 P.2d 676, 677
(Ariz. 1977); State v. Comer, 799 P.2d 333, 346 (Ariz. 1990) (en banc).
79
State v. Herrera, 850 P.2d 100, 109 (Ariz. 1993) (citing State v. Merryman, 283 P.2d 239, 241 (Ariz.
1955)).
80
State v. Newell, 132 P.3d 833, 847 (Ariz. 2006).
81
State v. Moody, 94 P.3d 1119, 1154 (Ariz. 2004).
82
State v. Lamar, 72 P.3d 831, 841 (Ariz. 2003).
83
State v. McCutcheon, 764 P.2d 1103, 1104 (Ariz. 1988) (citing State v. Gillies, 662 P.2d 1007, 1017
(Ariz. 1983)); see also State v. Blackmun, 38 P.3d 1192, 1209 (Ariz. Ct. App. 2002); see also Griffin v.
California, 380 U.S. 609 (1965); ARIZ. CONST. art. 2, § 10. The comments are not impermissible, however,
unless they are “calculated to direct the jurors' attention to the defendant's exercise of his fifth amendment
privilege.” McCutcheon, 764 P.2d at 1104. “[T]he statements must be examined in context to determine
whether the jury would naturally and necessarily perceive them to be a comment on the failure of the
defendant to testify.” State v. Schrock, 719 P.2d 1049, 1054 (Ariz. 1986).
72

112

commonly understood as sanctioning the death penalty. 84 Similarly, prosecutors may not
participate in “vouching,” which can take two forms: (1) where the prosecutor places the
prestige of the government behind its evidence; and (2) where the prosecutor suggests
that information not presented to the jury supports the evidence. 85
Courts have found a large number of other themes to be improper, when used in
prosecutorial argument, including the personal opinions of the prosecutor 86 and the jury’s
lack of responsibility in making the ultimate decision. 87
b. Challenges to Prosecutorial Arguments
In general, to demonstrate that a prosecutor’s comments constituted misconduct that
warrants a mistrial, the trial court should consider two factors: (1) whether the
prosecutor's statements called to the jury's attention matters it should not have considered
in reaching its decision and (2) the probability that the jurors were in fact influenced by
the remarks. 88 Even if these questions are answered in the affirmative, the defendant
must show that the statements "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." 89 The trial court’s decision will not be
overturned in the absence of a clear abuse of discretion. To warrant reversal, the
prosecutorial misconduct must be “‘so pronounced and persistent that it permeates the
entire atmosphere of the trial’” 90 and improper prosecutorial comments must show that
there is a “reasonable likelihood” that the “misconduct could have affected the jury’s
verdict” 91 as well as the defendant’s right to a fair trial. 92

84
85
86
87
88
89
90
91
92

Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000).
Comer, 799 P.2d at 346; U.S. v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).
U.S. v. Young, 470 U.S. 1, 8-9 (1989).
Caldwell v. Mississippi, 472 U.S. 320 (1985).
State v. Newell, 132 P.3d 833, 846 (Ariz. 2006).
Id. (quoting State v. Hughes, 969 P.2d 1184, 1191 (Ariz. 1998)).
Id. (quoting State v. Lee, 944 P.2d 1222, 1230 (Ariz. 1997)).
Newell, 132 P.3d at 847 (quoting State v. Atwood, 832 P.2d 593, 623 (Ariz. 1992)).
Id. (quoting State v. Dumaine, 783 P.2d 1184, 1195 (Ariz. 1989)).

113

II. ANALYSIS
A. Recommendation #1
Each prosecutor’s office should have written policies governing the exercise
of prosecutorial discretion to ensure the fair, efficient, and effective
enforcement of criminal law.

The State of Arizona does not require county attorney offices to have written policies
governing the exercise of prosecutorial discretion. The Arizona Supreme Court,
however, has established the Arizona Rules of Professional Conduct (the Rules) to,
among other things, address prosecutorial discretion in the context of the role and
responsibilities of prosecutors.93 The Rules describe the prosecutor’s role as that of a
“minister of justice and not simply that of an advocate” and advise the prosecutor to “see
that the defendant is accorded procedural justice and that guilt is decided upon the basis
of sufficient evidence.” 94 The Rules also require prosecutors to:
(1)
(2)

(3)
(4)

(5)

(6)

93
94
95

Refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause;
Make reasonable efforts to assure that the defendant has been advised of
the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;
Not seek to obtain from an unrepresented accused a waiver of important
pretrial rights;
Make timely disclosure to the defense all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or that
mitigates the offense, and in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;
Not subpoena a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor
reasonably believes the information sought is not protected from
disclosure, the evidence sought is essential to the successful completion of
any ongoing investigation or prosecution, and there is no other feasible
alternative to obtain the information; and
Except for statements that are necessary to inform the public of the nature
and extent of the prosecutor’s action and that serve a legitimate law
enforcement purpose, refrain from making extrajudicial comments that
have a substantial likelihood of heightening public condemnation of the
accused and exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or associated
with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor otherwise would be prohibited from
making. 95

ARIZ. R. OF PROF’L CONDUCT 3.8 cmt.
Id.
ARIZ. R. OF PROF’L CONDUCT 3.8.

114

Currently, the State of Arizona gives county attorneys the discretion to seek the death
penalty in any case in which the defendant is charged with first-degree murder under
section 13-1105 of the Arizona Revised Statutes (A.R.S.). 96 As part of its Final Report,
the Arizona Capital Case Commission recommended that “all prosecuting agencies
involved in capital case prosecution adopt a written policy for identifying cases in which
to seek the death penalty. Such policies should include soliciting or accepting defense
input before deciding to seek the death penalty.” 97 The Final Report indicated that this
recommendation would be submitted to the Arizona Prosecuting Attorneys’ Advisory
Council, 98 but we were unable to determine whether the Council ever took action. We
are aware of at least one county attorney’s office that maintains a “Capital Case Panel” to
guide prosecutors in exercising their discretion to seek the death penalty. The Pima
County Attorney’s Office’s “Capital Case Panel” decides, subject to the county attorney’s
approval, whether to file a notice of intent to seek the death penalty. 99 We note that we
did not ascertain whether the other fourteen county attorney offices have policies
governing the exercise of prosecutorial discretion, however.
While the State of Arizona does not require county attorney’s offices to have written
policies governing the exercise of prosecutorial discretion, we were unable to determine
whether each county attorney office has written materials governing the exercise of
prosecutorial discretion. Consequently, we are unable to ascertain whether Arizona
meets Recommendation #1.
Additionally, based on the above information, the Arizona Death Penalty Assessment
Team makes the following recommendation: to encourage transparency and the even
application of the death penalty, the State of Arizona should require that all prosecuting
agencies involved in capital case prosecutions have written policies for identifying cases
in which to seek the death penalty. As recommended by the Arizona Capital Case
Commission, these policies should require the solicitation or acceptance of defense input
before deciding to seek the death penalty.
B. Recommendation #2
Each prosecutor’s office should establish procedures and policies for
evaluating cases that rely upon eyewitness identification, confessions, or the
testimony of jailhouse snitches, informants, and other witnesses who receive
a benefit.

The State of Arizona has, by court opinion and by rule, established certain trial
procedures relevant to the reliability and/or admissibility of eyewitness identifications
and expert testimony on eyewitness identifications. Rule 702 of the Arizona Rules of
Evidence states that “[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness
96

Section 13-703(F)(6) of the A.R.S. allows prosecutors to seek death when “[t]he defendant committed
the offense in an especially heinous, cruel or depraved manner.” ARIZ. REV. STAT. § 13-703(F)(6)(2006).
97
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT (Dec. 2002).
98
Id.
99
Telephone Interview with Rick Unlkesbay, Chief Trial Deputy, Pima County Attorney’s Office.

115

qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” 100
The Arizona Supreme Court has expanded upon Rule 702 and held that the key to
determining the admissibility of expert testimony about the reliability and/or
admissibility of eyewitness identifications is “whether the testimony might assist the jury
to resolve the issues raised by the facts. In making this determination, the trial court must
first consider those contentions of ultimate fact raised by the party offering the evidence
and supported by evidentiary facts in the record. It must then determine whether the
expert testimony will assist in resolving the issues.” 101 This has been interpreted to mean
that there are four criteria that should be applied in determining the admissibility of the
expert testimony: (1) qualified expert; (2) proper subject; (3) conformity to a generally
accepted explanatory theory; and (4) probative value compared to prejudicial effect. 102
Beyond these criteria, the trial court has discretion to exclude testimony that exceeds or
does not conform to these standards 103 and “[e]xpert opinion on eyewitness identification
will not frequently meet the standard for proper subject . . . and a trial court's
discretionary ruling generally will be upheld.” 104 Additionally, expert testimony must be
"limited to an exposition of the factors affecting reliability” and the expert may not give
his/her opinion as to the accuracy or credibility of a particular witness.105 “Key factors in
determining the admissibility of expert testimony on eyewitness identification include the
importance of the eyewitness testimony and the presence or absence of other evidence
linking the defendant to the crime.” 106
On appeal, “the test is not whether [the appellate court believes] that under these facts the
evidence was admissible, but whether the trial court abused its discretion in reaching the
contrary conclusion.” 107
Furthermore, the Revised Arizona Jury Instructions (Criminal) include instructions on the
factors to be considered in gauging eyewitness identifications. The instruction states that:
The State must prove beyond a reasonable doubt that the in-court
identification of the defendant at this trial is reliable. In determining
whether this in-court identification is reliable you may consider such
things as:
(1)
(2)
(3)
(4)

100
101
102
103
104
105
106
107

The witness’ opportunity to view at the time of the crime;
The witness’ degree of attention at the time of the crime;
The accuracy of any descriptions the witness made prior to the
pretrial identification;
The witness’ level of certainty at the time of the pretrial
identification;

ARIZ. R. EVID. R. 702.
State v. Chapell, 660 P.2d 1208, 1222 (Ariz. 1983).
State v. Roscoe, 910 P.2d 635, 646 (Ariz. 1996).
State v. Via, 704 P.2d 238, 253 (Ariz. 1985).
Roscoe, 910 P.2d at 646.
State v. Nordstrom, 25 P.3d 717, 730-31 (Ariz. 2001) (quoting Chapell, 660 P.2d at 1222).
Roscoe, 910 P.2d at 646.
Chapell, 660 P.2d at 1222.

116

(5)
(6)

The time between the crime and the pretrial identification;
Any other factor that affects the reliability of the identification. If
you determine that the in-court identification of the defendant at
this trial is not reliable, then you must not consider that
identification. 108

The Arizona Supreme Court has held that this instruction must be given, upon request,
when the court has concluded that pretrial identification procedures were unduly
suggestive, but that the proposed in-court identification has been shown by clear and
convincing evidence to be reliable and derived from an independent source. 109
Because the State of Arizona does not require county attorney’s offices to establish
procedures and polices for evaluating cases that rely upon eyewitness identification,
confessions, or the testimony of jailhouse snitches, informants, and other witnesses who
receive a benefit, however, the State of Arizona is not in compliance with
Recommendation #2. We note that we were unable to ascertain whether each county
attorney’s office has established procedures and policies for evaluating cases that rely
upon eyewitness identification, confessions, or the testimony of jailhouse snitches,
informants, and other witnesses who receive a benefit.
C. Recommendation #3
Prosecutors should fully and timely comply with all legal, professional, and
ethical obligations to disclose to the defense information, documents, and
tangible objects and should permit reasonable inspection, copying, testing,
and photographing of such disclosed documents and tangible objects.

Despite the obligations provided by the discovery provisions, state and federal law, and
the Arizona Rules of Professional Conduct, it appears that some prosecutors still
occasionally fail to comply with the discovery requirements. For example, a Center for
Public Integrity study of all Arizona appellate opinions addressing alleged prosecutorial
error or misconduct from 1970 until June 2003 revealed thirty-nine cases in which judges
reversed or remanded a defendant's conviction, sentence or indictment due to a
prosecutor's conduct. 110 In an additional eight, a dissenting judge or judges thought the
prosecutor's conduct prejudiced the defendant. 111 Of the cases in which judges ruled the
prosecutor's conduct prejudiced the defendant, twenty-five involved improper trial
behavior such as arguments and witness examination, six involved the prosecution failing
to timely disclose evidence to the defense, three involved discrimination in jury selection,
three involved pre-trial conduct, one involved the destruction of evidence favorable to the
defendant, and one involved improper conduct in a grand jury proceeding.

108

REVISED ARIZONA JURY INSTRUCTIONS (Criminal) 39, Identification, available at
http://www.myazbar.org/SecComm/Committees/CRJI/CRJI-PDF/StandardCriminal.pdf (last visited Jun.
19, 2006).
109
State v. Dessureault, 453 P.2d 951, 955 (Ariz. 1969).
110
Id.
111
Id.

117

Below are three examples in which convictions and/or sentences were overturned
because, at least in part, prosecutors were found to have engaged in prosecutorial
misconduct . 112 For example:
•

•

•

Paris Carriger was convicted of robbery and murder in 1978 and sentenced to
death. His conviction was overturned by the United States Court of Appeals for
the Ninth Circuit in 1997 because the prosecutor failed to disclose information
that could have undermined the key witness' credibility. Carriger was released
from prison in 1999.
Christopher McCrimmon was convicted of capital murder and sentenced to death
in 1993, along with two co-defendants. After McCrimmon’s original trial was
overturned because of the trial judge’s undue pressure on the jury, 113 it was
subsequently discovered that the lead prosecutor against all three co-defendants
had presented false evidence in the original case. After this was discovered,
McCrimmon was acquitted at re-trial in 1997. In commenting on the prosecutor's
deceit, the Arizona Supreme Court wrote: “The record is replete with evidence of
Peasley's full awareness that [evidence he presented] was utterly false. Peasley's
misdeeds were not isolated events but became a consistent pattern of prosecutorial
misconduct that began in 1993 and continued through re-trial in 1997.” 114
Ray Krone was convicted of first-degree murder and kidnapping and sentenced to
death in 1992. His conviction was overturned in 1995 by the Arizona Supreme
Court because the prosecutor did not turn over a videotape until just before the
start of the trial that an expert witness was preparing to use during his testimony,
but he was retried and convicted in 1996. 115 Krone was retried and convicted in
1996, but was exonerated and released from prison in 2002.

State and federal law provide that defendants are entitled to all exculpatory information
and evidence. 116 The prosecutor “is not required to deliver his[/her] entire file to defense
counsel, but is required to disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.” 117 In capital cases, this has been interpreted
to mean that the prosecution must turn over evidence that would be mitigating at the
penalty phase of the trial, 118 in addition to evidence that goes toward guilt, 119 including
the “disclosure of impeachment evidence which could be used to show bias or interest on
the part of a key State witness. Accordingly, the State is under a duty to reveal any [deal
112

See State v. Carriger, 692 P.2d 991 (Ariz. 1984); State v. Minnitt, 55 P.3d 774 (Ariz. 2002); Krone v.
State, 897 P.2d 621 (Ariz. 1995).
113
State v. McCrimmon/Minnitt, 927 P.2d 1298 (Ariz. 1996).
114
See J. Toobin, Killer Instincts, THE NEW YORKER, Jan. 17, 2005. In 2004, the Court unanimously
voted to disbar the prosecutor, stating that his behavior "could not have been more harmful to the justice
system." He had twice been selected as the state prosecutor of the year. Id.
115
See The Center for Public Integrity, Harmful Error, Actual Innocence, available at
http://publicintegrity.org/pm/default.aspx?act=sidebarsb&aid=38 (last visited July 10, 2006); Death Penalty
Information Center, Innocence and the Crisis in the American Death Penalty, available at
http://www.deathpenaltyinfo.org/article.php?scid=45&did=1149#Sec05a (last visited July 10, 2006).
116
Brady v. Maryland, 373 U.S. 83 (1963); State v. Jones, 587 P.2d 742, 746 (Ariz. 1978); see also ARIZ.
R. CRIM. P. 15.1 cmt.
117
U.S. v. Bagley, 473 U.S. 667, 675 (1985); State v. Tucker, 759 P.2d 579, 584 (Ariz. 1988).
118
See, e.g., U.S. v. Perez, 222 F. Supp. 2d 164, 168 (D. Conn. 2002).
119
Green v. Georgia, 442 U.S. 95 (1979).

118

or] agreement, even an informal one, with a witness concerning criminal charges pending
against that witness.” 120 A prosecutor must not only disclose the evidence of which s/he
is aware, but also “favorable evidence known to others acting on the government’s
behalf,” even if the prosecutor is not personally aware of its existence. 121 The United
States Court of Appeals for the Ninth Circuit has stated that this exculpatory evidence
must be disclosed, even in the absence of a request from the defense. 122
Although many prosecutors fully and timely comply with all legal, professional, and
ethical obligations to disclose evidence, this is not always the case. We, therefore,
conclude that the State of Arizona is only in partial compliance with Recommendation
#3.
D. Recommendation #4
Each jurisdiction should establish policies and procedures to ensure that
prosecutors and others under the control or direction of prosecutors who
engage in misconduct of any kind are appropriately disciplined, that any
such misconduct is disclosed to the criminal defendant in whose case it
occurred, and that the prejudicial impact of any such misconduct is
remedied.

The State of Arizona has entrusted the State Bar of Arizona and the Disciplinary
Commission (Commission) of the Arizona Supreme Court with the task of disciplining
lawyers. 123 All attorneys, including prosecutors, are required to report professional
misconduct. 124
According to the American Bar Association Center for Professional Responsibility, the
State Bar of Arizona received 4,714 complaints about alleged attorney misconduct in
2004 and had another 715 complaints pending from previous years. 125 Of these cases,
1,697 were investigated, 1,253 were summarily dismissed for lack of jurisdiction, 760
were dismissed after investigation, 252 complaints warranted the filing of formal charges,
and 73 were formally charged. 126 Furthermore, 126 lawyers were publicly sanctioned in
2004. 127 Of the 126 lawyers who were publicly sanctioned, nine of them were disbarred,
one was disbarred on consent, twenty were suspended, one was suspended on an interim
basis (for risk of harm or criminal conviction), fifty-two were publicly reprimanded
and/or censured, forty-six were placed on probation, and four were transferred to
disability/inactive status. 128 We were unable to determine how many, if any, of these
attorneys were or are prosecutors. The organization HALT, which evaluates lawyer
discipline systems across the country, assigned a grade of “B-” to Arizona’s system,
120

Giglio v. U.S. 405 U.S. 150, 154-55 (1972).
Kyles v. Whitley, 514 U.S. 419, 437-39 (1995).
122
Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997).
123
ARIZ. SUP. CT. R. 49 (a).
124
ARIZ. R. OF PROF’L CONDUCT 8.3.
125
ABA Center for Professional Responsibility, Survey on Lawyer Discipline Systems, 2004, available at
http://www.abanet.org/cpr/discipline/sold/sold-home.html (last visited Jun. 18, 2006).
126
Id.
127
Id.
128
Id.
121

119

based on an assessment of the adequacy of discipline imposed, its publicity and
responsiveness efforts, the openness of the process, the fairness of disciplinary
procedures, the amount of public participation, and promptness of follow-up on
complaints. 129 The organization ranks Arizona as having the third best attorney
disciplinary process in the country. 130
In addition, as previously discussed in Recommendation #3, the Center for Public
Integrity’s study of Arizona criminal appeals, including both death and non-death cases
from 1970 to June 2003, revealed thirty-nine cases in which the judges reversed or
remanded a defendant's conviction, sentence or indictment due to a prosecutor's
conduct. 131 In an additional eight cases, a dissenting judge or judges thought the
prosecutor's conduct prejudiced the defendant. 132 Of the cases in which judges ruled the
prosecutor's conduct prejudiced the defendant, twenty-five involved improper trial
behavior such as arguments and witness examination, six involved the prosecution failing
to timely disclose evidence to the defense, three involved discrimination in jury selection,
three involved pre-trial conduct, one involved the destruction of evidence favorable to the
defendant, and one involved improper conduct in a grand jury proceeding. In the
majority of cases in which the defendant alleged prosecutorial misconduct (254 out of the
302), however, the prosecutor’s conduct or error was found to be harmless. 133 We were
unable to determine how many of the prosecutors in these cases were referred to the State
Bar for discipline.
Although the State of Arizona has established a procedure by which grievances are
investigated and members of the State Bar are disciplined, we are unable to determine the
number of grievances made or initiated against prosecutor’s conduct. Based on this
information, the State of Arizona is in partial compliance with Recommendation #4.
E. Recommendation #5
Prosecutors should ensure that law enforcement agencies, laboratories, and
other experts under their direction or control are aware of and comply with
their obligation to inform prosecutors about potentially exculpatory or
mitigating evidence.

Rule 15.1(f) of the Arizona Rules of Criminal Procedure Rule requires that the
prosecutor’s obligation to disclose material information extend “to material and
information in the possession or control of any of the following:
(1)
(2)

The prosecutor, or members of the prosecutor's staff, or,
Any law enforcement agency which has participated in the investigation
of the case and that is under the prosecutor's direction or control, or,

129

HALT,
Lawyer
Discipline
2006
Report
Card,
Arizona,
available
at
http://www.halt.org/reform_projects/lawyer_accountability/report_card_2006/pdf/AZ_LDRC_06.pdf (last
visited Jun. 16, 2006).
130
Id.
131
Id.
132
Id.
133
Center for Public Integrity, Nationwide Numbers, available at
http://www.publicintegrity.org/pm/search.aspx?act=nat&hID=y (last visited on Jun. 16, 2006).

120

(3)

Any other person who has participated in the investigation or evaluation
of the case and who is under the prosecutor's direction or control.” 134

Given that a prosecutor is responsible for disclosing favorable evidence that s/he is not
personally aware of but is known to others acting on the State’s behalf (i.e., law
enforcement officers), it is in the best interest of all prosecutors to ensure that law
enforcement agencies, laboratories, and other experts under their direction or control are
aware of and comply with their obligation to inform prosecutors about potentially
exculpatory or mitigation evidence. Most prosecutors appear to take their obligations to
disclose exculpatory evidence seriously, but we are aware of one instance in which a
crime laboratory failed to disclose material evidence to the prosecutor.135 However, this
information is insufficient to draw any conclusions as to whether all prosecutors are
meeting or failing to meet Recommendation #5.
F. Recommendation #6
The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the prosecution
team, including training relevant to capital prosecutions.

The Arizona Prosecuting Attorneys’ Advisory Council presents an annual death penalty
seminar for prosecutors and assists with other seminars offered by the Arizona
Prosecuting Attorneys' Advisory Council. 136 These training programs do not appear to
be mandatory, but prosecutors may earn their required Continuing Legal Education
credits at these trainings. In addition, the Arizona Prosecuting Attorneys’ Advisory
Council also provides funding so that Arizona prosecutors may attend training provided
by the Association of Government Attorneys in Capital Litigation.
Based on this information, the State of Arizona is in compliance with Recommendation
#6.

134

ARIZ. R. CRIM. P. 15.1(f). The Arizona Supreme Court has reiterated this obligation. State v. Smith,
599 P.2d 187, 194 (Ariz. 1979).
135
See, e.g., State v. Meza, 50 P.3d 407, 413-14 (Ariz. Ct. App. 2002).
136
Arizona Attorney General, supra note 20.

121

122

CHAPTER SIX
DEFENSE SERVICES
INTRODUCTION TO THE ISSUE
Defense counsel competency is perhaps the most critical factor in determining whether a
capital offender/defendant will receive the death penalty. Although anecdotes about
inadequate defenses long have been part of trial court lore, a comprehensive 2000 study
shows definitively that poor representation has been a major cause of serious errors in
capital cases as well as a major factor in the wrongful conviction and sentencing to death
of innocent defendants.
Effective capital case representation requires substantial specialized training and some
experience in the complex laws and procedures that govern a capital case in a given
jurisdiction, as well as the resources to conduct a complete and independent investigation
in a timely way. It also requires that counsel invest substantial time and effort into
building client trust. Full and fair compensation to the lawyers who undertake such cases
also is essential, as is proper funding for experts.
Under current case law, a constitutional violation of the Sixth Amendment right to
effective assistance of counsel is established by a showing that the representation was not
only deficient but also prejudicial to the defendant—i.e., there must be a reasonable
probability that, but for defense counsel’s errors, the result of the proceeding would have
been different. 1 The 2000 study found that between 1973 and 1995, state and federal
courts undertaking reviews of capital cases identified sufficiently serious errors to require
retrials or re-sentencing in 68 percent of the cases reviewed. 2 In many of those cases,
more effective trial counsel might have helped avert the constitutional errors at trial that
led ultimately to relief.
In the majority of capital cases, however, defendants lack the means to hire lawyers with
the knowledge and resources to develop effective defenses. The lives of these defendants
often rest with new or incompetent court-appointed lawyers or overburdened public
defender services provided by the state.
Although lawyers and the organized bar have provided, and will continue to provide, pro
bono representation in capital cases, most pro bono representation is limited to postconviction proceedings. Only the jurisdictions themselves can address counsel
representation issues in a way that will ensure that all capital defendants receive effective
representation at all stages of their cases. Jurisdictions that authorize capital punishment
therefore have the primary—and constitutionally mandated—responsibility for ensuring
adequate representation of capital defendants through appropriate appointment
procedures, training programs, and compensation measures.

1

Strickland v. Washington, 466 U.S. 668 (1984).
JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000),
available at http://www2.law.columbia.edu/instructionalservices/liebman/ (last visited on May 23, 2006).
2

123

I. FACTUAL DISCUSSION
A. Arizona’s Indigent Legal Representation System
With the exception of a recently created state capital post-conviction public defender
office, 3 Arizona does not have a statewide indigent defense system for criminal cases.
Instead, each of Arizona’s fifteen counties is responsible for establishing its own system
to provide counsel to indigent defendants at trial and on direct appeal. Arizona law
provides that the board of supervisors in each county may establish an office of the public
defender. 4 County boards of supervisors are not required to establish public defender
offices, however, and instead may assign the representation of indigent defendants to
private attorneys. 5
In counties that have them, public defender offices generally serve as the first option for
the appointment of counsel to indigent defendants. Legal defender offices, in those
counties that have them, are considered secondary public defender offices and generally
represent indigent defendants when the public defender office cannot due to a legal or
ethical conflict or an overflow of cases. In counties without public defender offices,
contract attorneys will be appointed to represent indigent defendants. Contract attorneys
also represent indigent defendants in counties with public and/or legal defender offices
when those offices cannot take a case for conflict or workload reasons.
Six counties– Cochise, Coconino, Mohave, Navajo, Pima, and Yuma– have primary and
secondary public defender offices 6 and utilize contract attorneys to represent defendants
in cases where the two offices have conflicts-of-interest or where the public defender
offices’ workloads exceed what is allowable. 7 Maricopa County has primary, secondary,
and tertiary public defender programs, with contract counsel handling any overflow or
conflict-of-interest cases. 8 La Paz, Pinal, and Yavapai counties each have a single public
defender office 9 and utilize contract attorneys in cases where the public defender offices
have conflicts-of-interest or where the public defender offices’ workloads exceed the
allowable level. 10 The remaining five counties– Apache, Gila, Graham, Greenlee, and
Santa Cruz– rely exclusively on contract counsel to provide indigent defense services. 11
Upon court order, public defender offices are required to defend, advise, and counsel any
person who is not financially able to employ counsel in the following sorts of
proceedings and circumstances:

3

ARIZ. REV. STAT. § 41-4251 (2006).
ARIZ. REV. STAT. § 11-581 (2006). Public Defender Offices are referred to by several different names,
including public defender, legal defender, and legal advocate.
5
Ariz. Op. Att’y Gen. No. 66-15.
6
The Spangenberg Group, State and County Expenditures for Indigent Defense Services in Fiscal Year
2002 (Sept. 2003).
7
ARIZONA CRIMINAL JUSTICE COMMISSION, THE RISING COST OF INDIGENT DEFENSE IN ARIZONA,
(2003).
8
The Spangenberg Group, supra note 6.
9
Id.
10
ARIZONA CRIMINAL JUSTICE COMMISSION, supra note 7.
11
The Spangenberg Group, supra note 6.
4

124

(1)

(2)
(3)
(4)
(5)

(6)
(7)
(8)

(9)

(10)

Offenses triable in the superior court or justice courts at all stages of the
proceedings, including the preliminary examination, but only for those
offenses which by law require that counsel be provided;
Extradition hearings;
Sanity hearings when appointed by the court;
Involuntary commitment hearings held under title 36, chapter 18, if
appointed by the court;
Involuntary commitment hearings held pursuant to title 36, chapter 37,
when appointed by the court, if the court appoints the public defender and
the board of supervisors has advised the presiding judge of the county that
the public defender is authorized to accept the appointment;
Juvenile delinquency and incorrigibility proceedings when appointed by
the court;
Appeals to a higher court or courts;
All juvenile proceedings other than delinquency and incorrigibility
proceedings, if the court appoints the public defender and the board of
supervisors has advised the presiding judge of the county that the public
defender is authorized to accept the appointment;
All mental health hearings regarding release recommendations held before
the psychiatric security review board, when appointed by the court, if the
court appoints the public defender and the board of supervisors has
advised the presiding judge of the county that the public defender is
authorized to accept the appointment;
As attorneys of adults who are allegedly unable to effectively manage
their affairs or preserve their estates, if the court appoints the public
defender and the board of supervisors has advised the presiding judge of
the county that the public defender is authorized to accept the
appointment. 12

In the 2006 legislative session, the State of Arizona created the state capital postconviction public defender office. 13 The initial state capital post-conviction public
defender will be appointed for a term beginning on February 1, 2007 and ending on
January 31, 2011. 14 The state capital post-conviction public defender will:
(1)
(2)
(3)
(4)

(5)
12
13
14

Represent any person who is not financially able to employ counsel in
capital state post-conviction proceedings;
Supervise the operation, activities, policies and procedures of the state
capital post-conviction public defender office;
Submit an annual budget for the operation of the office to the legislature,
beginning in fiscal year 2007-08;
Not engage in the private practice of law or provide outside counsel to any
other attorney outside of the state capital post-conviction public defender
office;
Not sponsor or fund training for any other attorney outside of the state
capital post-conviction public defender office;

ARIZ. REV. STAT. § 11-584 (2006).
ARIZ. REV. STAT. § 41-4251(A) (2006).
2006 Ariz. Sess. Laws 369 § 8.

125

(6)
(7)

(8)

Not provide trial or direct appeal assistance to attorneys outside of the
state post-conviction public defender office;
Not lobby, during working hours, the state legislature or the congress of
the United States, except as it relates to the submission of an annual
budget; and
Allocate personnel and resources to post-conviction relief proceedings so
long as there are no conflicts of interest in representation and all state
capital post-conviction public defender attorneys are appointed to postconviction relief cases that are eligible for appointment of counsel. 15

Between 98% and 99% of all funding for Arizona’s indigent defense system is provided
by the counties. 16 For example, in 2002, over $80 million was spent on indigent defense
in Arizona and State Aid for Indigent Defense Funding contributed a little over $1.2
million. 17
Two statewide funding sources together comprise the one to two percent of state funding.
There is a $25 assessment fee that judges may, but do not have to, assess on indigent
defendants seeking representation. Money collected from this assessment is placed in a
Special Fund for Public Defenders that is designed to help defray the cost of providing
indigent defense services. In addition, the Arizona Supreme Court provides $2 of the $12
fee assessed on people who pay a court ordered penalty, fine, or sanction to county public
defender officers for costs associated with training. 18
The total cost of indigent defense has been rising and is projected to continue to rise. In
1998, total state and county expenditure for indigent defense was $55,353,470 and in
2002, total expenditure was $80,343,726– a 45.1% increase in five years. 19 Individual
counties have experienced cost increases too. For example, expenses in Greenlee County
rose 68%, expenses in Graham County rose 52.2%, expenses in Maricopa County rose
51.4%, and expenses in Pima County rose 41.4%. 20
More recent numbers in Pima County indicate that costs continue to rise. According to
the Arizona Daily Star, payments to contract attorneys have increased 81% over the past
five years while budgets for public and legal defenders offices have increased by 30%. 21
Maricopa and Pima counties account for the vast majority of Arizona’s indigent defense
spending. 22 In 2002, Maricopa County was responsible for 54.7% of the State’s total

15

ARIZ. REV. STAT. § 41-4251(F) (2006).
ARIZONA CRIMINAL JUSTICE COMMISSION, supra note 7; see also The Spangenberg Group, supra note
6; National Association of Criminal Defense Attorneys, A Discussion on Indigent Defense in Arizona (Feb.
2001),
at
http://www.nacdl.org/public.nsf/b540e98ee147ea5485256975005cc335/cc9f6d48f8da502985256a500050d
7db/$FILE/LVreport.pdf (last visited Mar. 1, 2006).
17
ARIZONA CRIMINAL JUSTICE COMMISSION, supra note 7.
18
The Spangenberg Group, supra note 6.
19
ARIZONA CRIMINAL JUSTICE COMMISSION, supra note 7.
20
Id.
21
Kim Smith, Cost of lawyers for the indigent soars in Pima, ARIZ. DAILY STAR, Feb. 19, 2006.
22
Id.
16

126

spending on indigent defense and Pima County was responsible for 22.6%. Together,
these two counties account for over 75% of the total state indigent defense costs. 23
The State pays for half of the costs of counsel in state post-conviction proceedings under
section 13-4041 of the Arizona Revised Statutes. 24
B. Appointment, Qualifications, Workload Limitations, Training, Compensation, and
Resources Available to Attorneys Handling Death Penalty Cases Covered by
Arizona’s Indigent Legal Representation Systems
1. Appointment of Counsel
Arizona law provides that an accused charged with a felony for which the death penalty
is being sought is eligible for appointed counsel at trial, on direct appeal, and in state
post-conviction proceedings if s/he can establish that s/he is indigent. 25 The presiding
judge of each county must establish a procedure for the Superior Court or limited
jurisdiction courts to ensure the appointment of counsel for each indigent person entitled
to counsel. 26
In counties that have a public defender, the public defender will represent defendants
found to be indigent whenever s/he is authorized by law and able in fact to do so. 27 If the
public defender is not appointed to a case, the presiding judge must appoint two private
attorneys. 28 All criminal appointments must be made in a manner that is fair and
equitable to the members of the State Bar and that takes into consideration the skills
likely needed in the particular case.29
If counsel is appointed, the lead counsel may select his/her co-counsel at the time of the
appointment, so long as the desired co-counsel is willing to accept the appointment and
meets the qualification requirements. 30 If the lead counsel does not name his/her cocounsel upon accepting the appointment, the court will make its own selection. 31

23

Id.
ARIZ. REV. STAT. § 13-4041(H) (2006); ARIZ. REV. STAT. § 41-4251H) (2006).
25
ARIZ. R. CRIM. P. 6.2, 6.6, 32.4(c)(1). The Arizona Rules of Criminal Procedure define an indigent as
“a person who is not financially able to employ counsel.” See ARIZ. R. CRIM. P. 6.4(a). A defendant who
would like to proceed as an indigent must complete under oath a questionnaire concerning his/her financial
resources, on a form approved by the Supreme Court. The defendant then will be examined under oath
regarding his/her financial resources by the judge, magistrate, or court commissioner responsible for
determining indigency. Prior to questioning, the defendant will be advised of the penalties for perjury.
After a determination of indigency or non-indigency has been made, the defendant, the appointed attorney,
or the prosecutor may move for reconsideration of that determination if there has been a material change in
circumstances. ARIZ. R. CRIM. P. 6.4(b), (c).
26
ARIZ. R. CRIM. P. 6.2.
27
ARIZ. R. CRIM. P. 6.5.
28
ARIZ. R. CRIM. P. 6.5(b), (c); 6.2.
29
ARIZ. R. CRIM. P. 6.5(c).
30
Id.
31
Id.
24

127

The defendant must be appointed two attorneys 32 “as soon as feasible after [s/he] is taken
into custody.” 33 The appointed counsel must represent the defendant through all trial
court proceedings, including the filing of a notice of appeal, unless the court allows the
attorney to withdraw. 34 If the court allows the attorney to withdraw, the trial or appellate
court must provide the defendant with a new attorney or ensure that counsel has been
otherwise provided. 35
Following review by the Arizona Supreme Court on direct appeal, death-sentenced
inmates continue to have a right to appointed counsel in every judicial proceeding,
including state post-conviction. 36 Death-sentenced inmates do not have a right to counsel
in clemency proceedings, however. 37
2. Attorney Qualifications
a. Public Defenders and Conflict Attorneys for Trial
To be appointed in a capital case, Arizona law requires that each defense attorney must:
(1)
(2)
(3)

Be a member in good standing of the State Bar of Arizona for at least five
years immediately preceding the appointment;
Have practiced in the area of state criminal litigation for three years
immediately preceding the appointment; and
Have demonstrated the necessary proficiency and commitment which
exemplify the quality or representation appropriate to capital cases. 38

In addition, the lead counsel must:
(1)
(2)

(3)

Have practiced in the area of state criminal litigation for five years
immediately preceding the appointment;
Have been lead counsel in at least nine felony jury trials that were tried to
completion and have been lead counsel or co-counsel in at least one
capital murder jury trial;
Be familiar with the American Bar Association Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases; 39 and

32

ARIZ. R. CRIM. P. 6.2.
ARIZ. R. CRIM. P. 6.1(a).
34
ARIZ. R. CRIM. P. 6.3.
35
ARIZ. R. CRIM. P. 6.2(b) cmt., 6.6.
36
ARIZ. REV. STAT. § 13-4041(B); see also ARIZ. R. CRIM. P. 32.4(c).
37
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency, on June 7, 2005. But see infra note 39. As part of the possible amendment to Arizona Rule of
Criminal Procedure 6.8, Guideline 10.15.2 sets forth performance guidelines with which clemency counsel
would be required to comply.
38
ARIZ. R. CRIM. P. 6.8(a).
39
In May 2006, the State Bar of Arizona passed and submitted to the Arizona Supreme Court a
recommendation that Arizona Rule of Criminal Procedure 6.8 be amended to require that lead trial counsel
in capital cases not only “be familiar with” the ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (Guidelines), but that they “be familiar with” the Guidelines and
“comply” with Guidelines 1.1, 10.2, 10.3, 10.4(B)-(D), 10.5, 10.6, 10.7, 10.8, 10.9.1, 10.9.2, 10.10.1,
33

128

(4)

Have attended and successfully completed, within one year prior to the
initial appointment, at least six hours of relevant training or educational
programs in the area of capital defense, and within one year prior to any
subsequent appointment, at least twelve hours of relevant training or
educational programs in the area of criminal defense. 40

Similarly, co-counsel, in addition to being a member in good standing of the State Bar of
Arizona, must have attended and successfully completed, within one year prior to the
initial appointment, at least six hours of relevant training or educational programs in the
area of capital defense, and within one year prior to any subsequent appointment, at least
twelve hours of relevant training or educational programs in the area of criminal
defense. 41
In exceptional circumstances, and with the consent of the Arizona Supreme Court, an
attorney who does not meet these requirements may be appointed, so long as the
attorney’s experience, stature, and record allow the court to conclude that the attorney’s
ability significantly exceeds the standards listed above and that the attorney associates
with a lawyer who does meet the standards. 42
b. Public Defenders and Contract Attorneys on Direct Appeal and in State
Post-conviction Proceedings
On direct appeal and in state post-conviction proceedings, to be eligible for appointment,
an attorney must:
(1)
(2)
(3)
(4)

Be a member in good standing of the State Bar of Arizona for at least five
years immediately preceding the appointment;
Have practiced in the area of state criminal litigation for three years
immediately preceding the appointment;
Have demonstrated the necessary proficiency and commitment which
exemplify the quality or representation appropriate to capital cases; and
Have attended, within one year prior to the initial appointment, at least six
hours of relevant training or educational programs in the area of capital
defense, and within one year prior to any subsequent appointment, at least
twelve hours of relevant training or educational programs in the area of
criminal defense. 43

In addition, an attorney eligible for appellate or post-conviction appointment must:
10.10.2, 10.11, 10.12, 10.13, and 10.14. The Arizona Supreme Court is expected to accept or reject this
amendment later this year.
40
ARIZ. R. CRIM. P. 6.8(b)(1).
41
ARIZ. R. CRIM. P. 6.8(b)(2). In conjunction with the May 2006 State Bar of Arizona recommendation
that Arizona Rule of Criminal Procedure 6.8 be amended to require that lead trial counsel “be familiar
with” the Guidelines and “comply” with Guidelines 1.1, 10.2, 10.3, 10.4(B)-(D), 10.5, 10.6, 10.7, 10.8,
10.9.1, 10.9.2, 10.10.1, 10.10.2, 10.11, 10.12, 10.13, and 10.14, the amendment also would require that trial
level co-counsel abide by this same requirement. The Arizona Supreme Court is expected to accept or
reject this amendment later this year.
42
ARIZ. R. CRIM. P. 6.8(d).
43
ARIZ. R. CRIM. P. 6.8(c) (2006).

129

(1)

(2)

Within three years immediately preceding the appointment, have been lead
counsel in an appeal or post-conviction proceeding in a case in which a
death sentence was imposed, as well as prior experience as lead counsel in
the appeal of at least three felony convictions and at least one postconviction proceeding that resulted in an evidentiary hearing; or
Have been lead counsel in the appeal of at least six felony convictions, at
least two of which were appeals from first or second degree murder
convictions, and lead counsel in at least two post-convictions proceedings
that resulted in evidentiary hearings. 44

In exceptional circumstances, and with the consent of the Arizona Supreme Court, an
attorney may be appointed who does not meet these requirements, so long as the
attorney’s experience, stature, and record allow the court to conclude that the attorney’s
ability significantly exceeds the standards listed above and that the attorney associates
with a lawyer who does meet the standards. 45
Arizona law also requires that appointed post-conviction counsel not have represented the
defendant in the case at trial or direct appeal, “unless the defendant and counsel expressly
request continued representation and waive all potential issues that are foreclosed by
continued representation.” 46
c. State Capital Post-Conviction Public Defender
In the 2006 legislative session, the General Assembly created the state capital postconviction public defender office. 47 The new law, which comes into effect on February
1, 2007, requires the state capital post-conviction public defender to meet all of the
following criteria:
(1)
(2)
(3)

Be a member in good standing of the state bar of Arizona or become a
member of the state bar of Arizona within one year after appointment;
Have been a member of the state bar of Arizona or admitted to practice in
any other state for the five years immediately preceding the appointment;
Have had substantial experience in the representation of accused or
convicted persons in criminal or juvenile proceedings; and

44

ARIZ. R. CRIM. P. 6.8(c) (2006); see also ARIZ. REV. STAT. § 13-4041(C) (2006). The amendment to
Arizona Rule of Criminal Procedure 6.8 described in supra note 39, if accepted by the Arizona Supreme
Court, also would require appellate and post-conviction counsel to be familiar with the Guidelines and to
comply with Guideline 1.1, 10.15.1, and 10.15.2.
45
ARIZ. R. CRIM. P. 6.8(d). The amendment to Arizona Rule of Criminal Procedure 6.8 described in
supra note 39, if accepted by the Arizona Supreme Court, also would require that attorneys appointed
under the “Exceptional Circumstances” provision be familiar with the Guidelines and, if serving as triallevel counsel, comply with Guidelines 1.1, 10.2, 10.3, 10.4 (B)-(D), 10.5, 10.6, 10.7, 10.8, 10.9.1, 10.9.2,
10.10.1, 10.10.2, 10.11, 10.12, 10.13, and 10.14 and, if serving as appellate or post-conviction counsel,
comply with Guidelines 1.1, 10.15.1, and 10.15.2.
46
ARIZ. REV. STAT. § 13-4041(C)(3) (2006).
47
ARIZ. REV. STAT. § 41-4251(A) (2006).

130

(4)

Meet or exceed the standards for appointment of counsel in capital cases
under Arizona Rule of Criminal Procedure 6.8. 48

Attorneys in the state capital post-conviction public defender also will be required to
comply with the requirements set forth in Arizona Rule of Criminal Procedure 6.8.
3. Attorney Workload Limitations
In the 1984 case of State v. Joe U. Smith, the Arizona Supreme Court established a
maximum caseload for all attorneys who provide indigent defense, regardless of whether
they are public defenders or contract attorneys. 49 Under the standards, the maximum
allowable caseload for each full-time attorney may not exceed:
(1)
(2)
(3)
(4)
(5)

Fifty felonies per attorney per year;
Three hundred misdemeanors per attorney per year;
Two hundred juvenile cases per attorney per year;
Two hundred mental commitment cases per attorney per year; or
Twenty-five appeals to appellate court hearing a case on the record and
briefs per attorney per year. 50

Attorneys who work less than full-time or handle a mix of cases are limited to
proportional workloads. 51
Despite this mandate, several counties reportedly exceed these caseload standards. For
example, in Maricopa County, workload standards are estimated to be consistently
exceeded by 40%. 52 A June 2003 article in the Phoenix New Times reported that the
head of the Maricopa County Office of Court Appointed Counsel stated that he would
continue appointing qualified attorneys to death penalty cases “as long as they tell me
they can do the job.” 53 At least one defense attorney, and reportedly more than one, had
six capital cases at the time of the newspaper article. 54
In addition, in a Yuma County survey, it was reported that Apache, Gila, Greenlee, and
Santa Cruz could not estimate the average caseload for their criminal contract attorneys
or public defenders. Cochise, Coconino, La Paz, Mohave, Navajo, and Yuma Counties
estimated that their indigent defense attorneys each were handling more than 200
criminal and misdemeanor cases per year, and Maricopa, Pima, and Pinal counties
estimated that their indigent defense attorneys handled nearly 200 cases per year. 55 Only
48

ARIZ. REV. STAT. § 41-4251(D) (2006).
State v. Smith, 681 P.2d 1374 (Ariz. 1984) (en banc).
50
Id. at 1380.
51
Id.
52
National Association of Criminal Defense Attorneys, A Discussion on Indigent Defense in Arizona
(Feb. 2001), at
http://www.nacdl.org/public.nsf/b540e98ee147ea5485256975005cc335/cc9f6d48f8da502985256a500050d
7db/$FILE/LVreport.pdf (last visited Mar. 1, 2006).
53
Paul Rubin, Off with their heads, PHOENIX NEW TIMES, June 26, 2003.
54
Id.
55
John A. Stookey & Larry A. Hammond, Rethinking Arizona’s System of Indigent Representation, ARIZ.
ATTY. (Oct. 1996).
49

131

Graham and Yavapai counties reported estimated caseloads much less than 200 cases per
year. 56
In May 2006, the State Bar of Arizona passed and submitted to the Arizona Supreme
Court a recommendation that Rule 6.8 of the Arizona Rules of Criminal Procedure be
amended to require that all trial-level defense attorneys in capital cases comply with
Guideline 10.3, 57 which requires that “[c]ounsel representing clients in death penalty
cases should limit their caseloads to the level needed to provide each client with high
quality legal representation.” 58 The Arizona Supreme Court is expected to accept or
reject this amendment later this year.
4. Training Requirements for Public Defenders and Conflict Attorneys and
Training Sponsors
a. Training Requirements
Rule 6.8 of the Arizona Rules of Criminal Procedure requires all trial, appellate and postconviction counsel to have “attended and successfully completed, within one year prior to
the initial appointment, at least six hours of relevant training or educational programs in
the area of capital defense, and within one year prior to any subsequent appointment, at
least twelve hours or relevant training or educational programs in the area of criminal
defense.” 59
b. Training Sponsors
The Arizona Public Defenders Association offers training programs each year on a
variety of topics, in addition to an annual statewide conference each June. 60
The State Bar of Arizona offers at least one training program, titled “More Sex, Murder,
and the Media,” that deals with death penalty issues. 61 In addition, the Maricopa County
Office of the Public Defender, in conjunction with other indigent defense offices,
provides a variety of training relevant to capital defense. In the Maricopa County Office
of the Public Defender 2003 Annual Report, it reported that in 2002 it hosted or co-hosted
a Death Cases Overview seminar with sixty-five participants, two death penalty trainings
with 209 and 190 participants, a juvenile death penalty program with 119 participants,
and a capital defense standards program with thirty-two participants. 62 In its 2001 and
56

Id.
In the Matter of Petition to Amend Rule 6.8 of the Arizona Rules of Criminal Procedure, No. R-050031 (filed May 22, 2006) (comment by the State Bar of Arizona).
58
ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH
PENALTY CASES (rev. ed. 2003), at Guideline 10.3.
59
ARIZ. R. CRIM. P. 6.8(b), (c).
60
See Arizona Public Defender Association, available at http://www.apdanet.org/ (last visited Feb. 26,
2006).
61
See
MyAZb@r,
Catalog,
More
Sex
Murder
&
the
Media,
available
at
http://www.legalspan.com/AZBar/catalog.asp?UGUID=&CategoryID=220000618723983143116&ItemID
=20050106-792243-170848 (last visited Feb. 26, 2006).
62
See OFFICE OF THE MARICOPA COUNTY PUBLIC DEFENDER, 2003 ANNUAL REPORT, at
http://www.pubdef.maricopa.gov/ (last visited Feb. 26, 2006).
57

132

2002 Annual Reports, it reported holding one death penalty training each year, with 171
and 259 participants respectively. 63
5. Compensation Limits and Rates of Appointed Attorneys
Arizona law requires that “[i]f counsel is appointed by the court and represents the
defendant in . . . a criminal proceeding,” “counsel shall be paid by the county in which
the court presides, except that in those matters in which a public defender is appointed,
no compensation shall be paid by the county. Compensation for services rendered to the
defendant shall be in an amount that the court in its discretion deems reasonable,
considering the services performed.” 64 Furthermore, “[t]he manner of determining
reasonable compensation shall be as provided by local rule and ARIZ. REV. STAT. § 134013. An attorney shall receive a sum representing reasonable compensation for the
services performed, considering the hours worked, the experience of counsel, the quality
of the work performed, and any amount actually paid by the defendant … However, the
aggregate amount paid by the defendant and the county shall not exceed the full amount
paid by the county alone to the appointed attorneys in comparable cases.” 65
In state post-conviction proceedings, Arizona law requires that court appointed counsel
be compensated at a rate “not to exceed” $100 per hour.66 If the number of hours worked
by counsel exceeds 200, counsel may still be entitled to compensation, so long as s/he
shows “good cause.” 67
The hourly rate and the per-case maximum paid to contract and other court-appointed
attorneys varies from county to county. 68 Pima County public defender attorney salaries
range from approximately $37,500 to $90,000. 69 Its contract attorneys receive $75 per
hour, not to exceed $15,000 without prior approval of the court, to be the lead attorney in
trial-level capital representation, as well as for appellate representation. Trial-level cocounsel is eligible to receive $60 per hour, not to exceed $7,500 without prior approval of
the court. 70
In Maricopa County, the starting salary for a public defender in 2001 was $42,453. 71
Attorneys receive a flat fee of $10,000 per capital case with an additional $10,000 if the
case goes to trial. 72 On appeal, attorneys receive $20,000 per case. 73
63

See OFFICE OF THE MARICOPA COUNTY PUBLIC DEFENDER, 2001 ANNUAL REPORT, at
http://www.pubdef.maricopa.gov/ (last visited Feb. 26, 2006); OFFICE OF THE MARICOPA COUNTY PUBLIC
DEFENDER 2002 ANNUAL REPORT, at http://www.pubdef.maricopa.gov/ (last visited Feb. 26, 2006).
64
ARIZ. REV. STAT. § 13- 4013(A) (2005).
65
ARIZ. R. CRIM. P. 6.7(b).
66
ARIZ. REV. STAT. § 13-4041(F) (2005).
67
ARIZ. REV. STAT. § 13-4041(G) (2005).
68
The Spangenberg Group, supra note 6.
69
National Association of Criminal Defense Attorneys, supra note 52.
70
Professional
Services
Contract:
First
Degree
Murder/SVP,
at
http://www.pima.gov/ocac/contracts/firstdegreemurdersvpcontract.pdf (last visited Feb. 28, 2006). See
also The Spangenberg Group, supra note 6.
71
National Association of Criminal Defense Attorneys, supra note 52.
72
Maricopa County Contract for Attorney Services, Serial 04011-ROQ, available at
http://www.maricopa.gov/ContractCounsel/Assets/Documents/FY04-05/04011-HomicideMajor%20Felony.pdf (last visited March 2, 2006); see also The Spangenberg Group, supra note 6.

133

In rural counties, the salaries in public defender offices tend to range between $35,000
and $90,000. 74 In Yavapai County, some defense counsel enter into contracts that pay a
flat fee, often $70,000, for representation in a set number of cases; Graham County also
uses contract attorneys who are paid $80,000 to provide representation in a hundred
cases. 75 Pinal and Mohave counties pay contract attorneys $100 per hour. 76
6. Resources Available to Public Defenders and Conflict Attorneys
“If a person is charged with a felony offense the court may on its own initiative and shall
on application of the defendant and a showing that the defendant is financially unable to
pay for such services appoint investigators and expert witnesses as are reasonably
necessary to adequately present a defense at trial and at any subsequent proceeding.” 77 In
a capital case, Arizona law authorizes that an indigent defendant may apply for the
appointment of an investigator, an expert witness, and a mitigation specialist. 78 Arizona
law also explicitly allows the trial court to “authorize additional monies to pay for
investigative and expert services that are reasonably necessary” in state post-conviction
proceedings. 79
At trial and on direct appeal, the costs of experts will be paid by the prosecuting county
so long as the defendant can show that the expert assistance is “reasonably necessary to
present a defense adequately at trial or sentencing.” 80 Appointed experts will be
compensated at the rate the county contracts for those services. 81 “If a necessary expert
witness represents a discipline or has a skill that is not then the subject of a county
contract, the county may either promptly procure those services . . . or ask the court to
establish a reasonable fee for that witness. If no investigator or expert witness who is
under contract with the county to provide services is available and the defendant is unable
to obtain such services at the county rate, the court shall establish a reasonable fee for the
expert witness or investigator providing the service.” 82
In cases where the defendant is represented by the state capital post-conviction public
defender office, from the county in which the person was convicted must pay for half of
the fees incurred during its representation of that person, up to $30,000 per case. 83 In
state post-conviction proceedings where the defendant is not represented by the state
73

Maricopa
County
Contract
for
Attorney
Services,
Serial
04021-ROQ,
at
(last
http://www.maricopa.gov/ContractCounsel/Assets/Documents/FY04-05/04021-Appeals-PCR.pdf
visited Mar. 2, 2006).
74
National Association of Criminal Defense Attorneys, supra note 52.
75
Id.
76
Telephone Interview with Judge Johnson, Superior Court Judge, Pinal County Superior Court, on Feb.
28, 2006; Telephone Interview with Judge Robert R. Moon, Superior Court Judge, Mohave County
Superior Court, on Feb. 28, 2006.
77
ARIZ. REV. STAT. § 13-4013(B) (2006).
78
ARIZ. R. CRIM. P. 15.9(a).
79
ARIZ. REV. STAT. § 13-4013(J) (2006).
80
ARIZ. R. CRIM. P. 15.9(a).
81
ARIZ. REV. STAT. § 13-4013(C) (2006).
82
Id.
83
ARIZ. REV. STAT. § 41-4251(H) (2006).

134

capital post-conviction public defender office, the county will be reimbursed for half of
the expert and investigative services approved by the trial court. 84
In state post-conviction proceedings, the county will be reimbursed for half of the expert
and investigative services approved by the trial court. 85
As mentioned previously, the State Bar of Arizona recently passed and submitted to the
Arizona Supreme Court a recommendation that Rule 6.8 of the Arizona Rules of
Criminal Procedure be amended to require that all trial-level defense attorneys in capital
cases comply with Guideline 10.4, 86 which requires that defense counsel assemble a
defense team as soon as possible after designation or appointment that includes at least
one mitigation specialist, one fact investigator, one member qualified by training and
experience to screen individuals for the presence of mental or psychological disorders or
impairments, and any other members who are needed to provide high quality legal
representation. 87 Furthermore, if such resources are denied, counsel should make an
adequate record to preserve the issue for appellate review. 88 The Arizona Supreme Court
is expected to accept or reject this amendment later this year.
C. Appointment, Qualifications, Training, and Resources Available to Attorneys
Handling Cases Not Covered by Arizona’s Indigent Legal Representation System:
Clemency
The State of Arizona does not have any laws, rules, procedures, standards, or guidelines
requiring the appointment of counsel to inmates petitioning for clemency. 89
Apart from the Arizona Rules of Professional Conduct requiring competence, 90 there are
no additional qualification standards for attorneys who handle state clemency
proceedings. Neither the Arizona Revised Statutes nor the Rules of Criminal Procedure
require attorneys to possess any qualifications. Similarly, there are no training
requirements for attorneys who take on clemency cases.
D. Appointment, Qualifications, Training, and Resources Available to Attorneys
Handling Federal Habeas Corpus Petitions
Pursuant to section 3599 of Title 18 of the United States Code, a death-sentenced inmate
petitioning for federal habeas corpus in Arizona’s federal judicial district is entitled to
appointed counsel and other resources if s/he “is or becomes financially unable to obtain
adequate representation or investigative, expert, or other reasonably necessary
84

ARIZ. REV. STAT. § 13-4013(I) (2006).
Id.
86
In the Matter of Petition to Amend Rule 6.8 of the Arizona Rules of Criminal Procedure, No. R-050031 (filed May 22, 2006) (comment by the State Bar of Arizona).
87
ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH
PENALTY CASES (rev. ed. 2003), at Guideline 10.4.
88
Id.
89
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency, on June 7, 2005.
90
ARIZ. R. PROF’L. CONDUCT 1.1. (recognizing that “competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation”).
85

135

services.” 91 In Arizona, staff attorneys from the Federal Public Defender are appointed
to handle these cases unless there is a conflict of interest. 92
According to section 3599 of Title 18 of the United States Code, inmates entitled to an
appointed attorney must be appointed “one or more” qualified attorneys93 prior to the
filing of a formal, legally sufficient federal habeas petition. 94 To be qualified for
appointment, at least one of the appointed attorneys must “have been admitted to practice
in the [United States Court of Appeals for the Ninth Circuit] for not less than five years,
and must have had not less than three years experience in the handling of appeals in that
court in felony cases.” 95 For “good cause,” the court may appoint another attorney
“whose background, knowledge, or experience would otherwise enable him or her to
properly represent the defendant, with due consideration to the seriousness of the possible
penalty and to the unique and complex nature of the litigation.” 96 These attorneys may
be compensated at a maximum rate of $163 per hour. 97
In addition to counsel, the court may also authorize the attorneys to obtain investigative,
expert, or other services as are reasonably necessary for representation. 98 The fees and
expenses paid for these services may not exceed $7,500 in any case. 99
1. The Federal Public Defender
In the State of Arizona, the Capital Habeas Unit (CHU) of the Federal Public Defender
handles all federal habeas cases except in cases of a conflict of interest. 100 As of March
2006, there were ten lawyers employed in the CHU, six in Phoenix and four in Tucson,
representing clients in thirty-five death penalty habeas cases and an additional seven nondeath penalty habeas cases. 101
91

18 U.S.C. § 3599(a)(2) (2006); see also McFarland v. Scott, 512 U.S. 849, 856-57 (1994) (citing to 21
U.S.C. § 848(q)(4)(B), which has since been repealed).
92
See A Plan for Budgeting and Management in Capital Habeas Cases in the District of Arizona, at
http://www.azd.uscourts.gov/azd/courtinfo.nsf/CJA?OpenView&Start=1&Count=250&Expand=4#4 (last
visited on Feb. 28, 2006) [hereinafter Plan].
93
Guide to Judiciary Policy and Procedures (vol. VII), Appointment of Counsel in Criminal Cases,
Chapter VI Representation in Federal Capital Cases and in Death Penalty Federal Habeas Corpus
Proceedings, § 6.01, available at http://www.azd.uscourts.gov/azd/courtinfo.nsf/guide/$file/chapter6.pdf
(last visited on Feb. 28, 2006).
94
18 U.S.C. § 3599(a)(2) (2006); see also McFarland, 512 U.S. at 856-57.
95
18 U.S.C. § 3599(c) (2006).
96
18 U.S.C. § 3599(d) (2006).
97
Memorandum from Leonidas Ralph Mecham, Director, Administrative Office of the United States
Courts, to United States Courts of Appeals Judges, United States District Court Judges, United States
Magistrate Judges, Circuit Executives, Federal Public/Community Defenders, District Court Executives,
U.S. Courts of Appeals Clerks, U.S. District Courts Clerks, Senior Staff Attorneys, and Chief
Preargument/Conference
Attorneys
(Dec.
29,
2005),
available
at
http://www.fpdaz.org/assets/panel/Panel%20rate%202006.pdf (last visited Feb. 28, 2006). Attorneys
appointed pursuant to section 3599 are entitled to compensation at a rate of not more than $125 per hour for
in-court and out-of-court work, subject to cost-of-living increases. 18 U.S.C. § 3599(g)(1) (2006).
98
21 U.S.C. § 3599(f) (2006).
99
21 U.S.C. § 3599(g)(2) (2006).
100
See Plan, supra note 92.
101
Telephone Interview by Sigmund Popko with Dale A. Baich, Capital Habeas Unit, Federal Public
Defender, on Feb. 28, 2006.

136

All CHU attorneys are required to comply with the qualification requirements contained
in section 848(q)(6) of Title 28 of the United States Code and are required to attend at
least two training conferences per year.

137

II. ANALYSIS
A. Recommendation #1
In order to ensure high quality legal representation for all individuals facing
the death penalty, each death penalty jurisdiction should guarantee qualified
and properly compensated counsel at every stage of the legal proceedings–
pretrial (including arraignment and plea bargaining), trial, direct appeal, all
certiorari petitions, state post-conviction and federal habeas corpus, and
clemency proceedings. Counsel should be appointed as quickly as possible
prior to any proceedings. At minimum, satisfying this standard requires the
following (as articulated in Guideline 4.1 of the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases):

Based on prevailing state and federal law, indigent individuals charged with or convicted
of a capital offense in the State of Arizona have a right to appointed counsel during pretrial proceedings, at trial, on direct appeal, in state post-conviction proceedings, and in
federal habeas corpus proceedings. 102 Death-sentenced inmates petitioning for clemency
are not entitled to appointed counsel.
Indigent individuals entitled to appointed counsel at pre-trial proceedings, during trial,
and on direct appeal will be appointed counsel by the prosecuting county’s appointing
authority “as soon as feasible after a defendant is taken into custody.” 103 Indigent deathsentenced individuals in state post-conviction proceedings will be appointed counsel by
the Arizona Supreme Court, or if authorized by the Court, the presiding judge of the
county from which the case originated will appoint counsel. 104 Similarly, deathsentenced inmates entitled to appointed counsel for federal habeas corpus must be
appointed counsel prior to the filing of a formal, legally sufficient habeas petition. 105
Despite the fact that Arizona law guarantees counsel to indigent inmates through state
post-conviction proceedings, the Arizona Capital Case Commission recognized that
“[t]he needs are particularly acute for defense counsel in all post-conviction proceedings,
and for prosecutors and defense counsel at the trial level in the rural counties.” 106 In fact,
in 2001, eight capital cases were delayed at the state post-conviction stage because there
were no qualified lawyers available to represent the defendants; some of these defendants
have had to wait for over 18 months before a lawyer was appointed to represent them at
the state post-conviction stage. 107 Because of the concerns over the availability and
quality of state post-conviction defense counsel, the Capital Case Commission
recommended the creation of a statewide public defender office for capital cases. 108
Arizona recently created a state capital post-conviction public defender office to handle

102

See ARIZ. R. CRIM. P. 6.1(a), 32.4(c); ARIZ. REV. STAT. § 13-4041(B) (2006); 18 U.S.C. § 3599(a)(2)
(2006); McFarland v. Scott, 512 U.S. 849, 856-57 (1994).
103
ARIZ. R. CRIM. P. 6.1(a).
104
ARIZ. REV. STAT. § 13-4041(B) (2006).
105
See 21 U.S.C. § 848(q)(4)(B) (2004); McFarland, 512 U.S. at 856-57.
106
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 14 (Dec. 2002).
107
Id.
108
Id.

138

state post-conviction cases on a statewide basis, but this office was only provided
$220,000 for fiscal year 2006-07. 109
a. At least two attorneys at every stage of the proceedings qualified in
accordance with ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases, Guideline 5.1 (reproduced
below as Recommendation #2), an investigator, and a mitigation
specialist.

Given that death-sentenced inmates are not entitled to appointed counsel for clemency
proceedings, Arizona law only mandates the number of attorneys that must be appointed
at trial, on direct appeal and in state post-conviction proceedings. Arizona law
specifically requires that all indigent individuals charged with a capital offense be
appointed two attorneys at trial. 110 Arizona law also provides these attorneys with access
to investigators and experts at trial. 111 While the Rule 6.8 Committee Comment
“recommends that co-counsel be appointed at all stages of capital litigation,” 112 two
attorneys are not required on direct appeal and in state post-conviction proceedings. The
appointment of investigators and expert witnesses in these appellate proceedings is
permitted when the experts are deemed to be “reasonably necessary.” 113
Under federal law, an indigent death-sentenced inmate seeking federal habeas corpus
relief must be appointed “one or more attorneys” 114 and these attorneys must have access
to investigators, experts, or other services as are reasonably necessary for
representation. 115
The qualification requirements for attorneys appointed for trial, direct appeal, state postconviction, and federal habeas corpus proceedings will be discussed below under
Recommendation #2.
b. At least one member of the defense should be qualified by training and
experience to screen individuals for the presence of mental or
psychological disorders or impairments. Investigators and experts
should not be chosen on the basis of cost of services, prior work for the
prosecution, or professional status with the state.

Arizona law currently does not require at least one member of the defense team to be
qualified by training and experience to screen individuals for the presence of mental or
psychological disorders or impairments. However, Arizona law requires that the lead
109

2006 Ariz. Sess. Laws 369 § 10 (A).
ARIZ. R. CRIM. P. 6.2, 6.6.
111
ARIZ. R. CRIM. P. 15.9(a) (2006).
112
ARIZ. R. CRIM. P. 6.8 cmt.
113
See State v. Apelt, 861 P.2d 634, 650-51 (Ariz. 1993) (en banc) (concluding that a defendant must
show that the appointment of investigators and experts are “reasonably necessary”); ARIZ. REV. STAT. § 134013(B) (2005) (calling for the appointment of investigators and experts in cases where they are
“reasonably necessary to adequately present a defense at trial and at any subsequent proceeding”); ARIZ.
REV. STAT. § 13-4041(I) (2006) (“The trial court may authorize additional monies to pay for investigative
and expert services that are reasonably necessary.”).
114
See supra note 93 and accompanying text.
115
See supra note 98 and accompanying text.
110

139

defense attorney in a capital trial be familiar with the ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases 116 and Guideline
5.1(B)(2)(f) requires that “the [state] qualification standards should insure that the pool
[of defense attorneys available to represent indigent capital defendants] includes
sufficient numbers of attorneys who have demonstrated skill in the investigation,
preparation, and presentation of evidence bearing upon mental status.” 117 Furthermore,
in May 2006, the State Bar of Arizona passed and submitted to the Arizona Supreme
Court a recommendation that Rule 6.8 of the Arizona Rules of Criminal Procedure be
amended to require that trial counsel in capital cases not only “be familiar with” the ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases, but that they “comply” with various Guidelines, including Guideline 10.4, 118
which instructs that in assembling a defense team, lead counsel should include “at least
one member qualified by training and experience to screen individuals for the presence of
mental or psychological disorder or impairments.” 119 The Arizona Supreme Court is
expected to accept or reject this amendment later this year.
In addition, Arizona law requires that trial, appellate, and post-conviction counsel have
attended and successfully completed, within one year prior to the initial appointment, at
least six hours of relevant training or educational programs in the area of capital defense,
and within one year prior to any subsequent appointment, at least twelve hours or
relevant training or educational programs in the area of criminal defense.120 This training
could, but is not required to, include programming on screening individuals for the
presence of mental or psychological disorders or impairments.
Additionally, although the State of Arizona does not require attorneys to participate in
training on mental or psychological disorders or impairments, training on these issues
may be available through programs offered by the Arizona Public Defenders Association
and/or the Maricopa County Office of the Public Defender.
To the best of our knowledge, there are no equivalent programs available to other
members of the defense team, such as investigators and mitigation specialists. The
process for selecting investigators and experts will be discussed below under Subpart c.
c. A plan for defense counsel to receive the assistance of all expert,
investigative, and other ancillary professional services reasonably
necessary or appropriate to provide high quality legal representation at
every stage of the proceedings. The plan should specifically ensure

116

ARIZ. R. CRIM. P. 6.8(b)(1). On May 19, 2006, the Arizona State Bar approved amendments to Rule
6.8, which, if approved by the Arizona Supreme Court, would require attorneys to not only be familiar with
the Guidelines, but to also comply with them. These amendments next will be considered by the Arizona
Supreme Court.
117
ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH
PENALTY CASES (rev. ed. 2003), at Guideline 5.1.
118
In the Matter of Petition to Amend Rule 6.8 of the Arizona Rules of Criminal Procedure, No. R-050031 (filed May 22, 2006) (comment by the State Bar of Arizona).
119
ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH
PENALTY CASES (rev. ed. 2003), at Guideline 10.4.
120
ARIZ. R. CRIM. P. 6.8.

140

provision of such services to private attorneys whose clients are
financially unable to afford them.
i.

Counsel should have the right to seek such services through ex parte
proceedings, thereby protecting confidential client information.
ii. Counsel should have the right to have such services provided by
persons independent of the government.
iii. Counsel should have the right to protect the confidentiality of
communications with the persons providing such services to the
same extent as would counsel paying such persons from private
funds.

Given that death-sentenced inmates are not entitled to appointed counsel or resources for
investigators or experts during clemency proceedings, the State of Arizona only provides
resources for investigators and experts to attorneys handling death penalty cases at trial,
on direct appeal, and in state post-conviction proceedings.
In every stage of a capital case except clemency, “the court may on its own initiative and
shall on application of the defendant and a showing that the defendant is financially
unable to pay for such services appoint investigators and expert witnesses as are
reasonably necessary to adequately present a defense at trial and at any subsequent
proceeding.” 121 In a capital case, Arizona law authorizes that an indigent defendant may
apply for the appointment of an investigator, an expert witness, and a mitigation
specialist. 122 The costs for experts at trial and on direct appeal will be paid by the
prosecuting county so long as the defendant can show that the expert assistance is
“reasonably necessary to present a defense adequately at trial or sentencing.” 123 In state
post-conviction proceedings, the county will be reimbursed for half of the expert and
investigative services approved by the trial court.124
As the Arizona Supreme Court explained in State v. Bocharski:
So long as the law permits capital sentencing, Arizona's justice system
must provide adequate resources to enable indigents to defend themselves
in a reasonable way. The process must be orderly and fair. We do not
expect mitigation funds to be unlimited, nor is there a set amount that will
suffice. The unique facts of each case will determine what is "reasonably
necessary" for an indigent to adequately present a defense. 125
Requests for experts are not allowed to be made ex parte unless “a proper showing is
made concerning the need for confidentiality.” 126
Some public defender offices, including, for example, the Maricopa County Public
Defender’s Office, have experts, including investigators and mitigation specialists, on
121
122
123
124
125
126

ARIZ. REV. STAT. § 13-4013(B) (2006).
ARIZ. R. CRIM. P. 15.9(a).
Id.
ARIZ. REV. STAT. § 13-4013(I) (2006).
State v. Bocharski, 22 P.3d 43, 55 (Ariz. 2003) (en banc) (citations omitted).
ARIZ. R. CRIM. P. 15.9(b).

141

staff and consequently do not have to ask the court for funds to obtain expert
assistance. 127 According to the National Association of Criminal Defense Lawyers,
however, “[p]ublic defender offices, especially in rural counties, have to beg for more
money for experts and investigators.” 128
Contract attorneys, at least in some counties, may request funds for experts from their
appointing authority. For example, in Maricopa and Pima counties, attorneys are
required to obtain pre-approval for the expenses associated with hiring an expert or
investigator. 129
Under federal law, indigent death-sentenced inmates petitioning for federal habeas
corpus relief may request and the court may authorize inmates’ attorneys to obtain
investigative, expert, or other necessary services on behalf of the inmate. 130
In conclusion, the State of Arizona does not require that indigent individuals charged
with or convicted of a capital felony be appointed two attorneys at any stage of the
proceedings other than at trial. Instead, the State of Arizona requires the appointment of
two attorneys at trial and recommends, but does not require, two attorneys during direct
appeal and state post-conviction proceedings. And while Arizona makes experts and
investigators available through the state post-conviction process, it does not provide
resources for experts and investigators at the clemency stage. Additionally, because it is
unclear exactly what is meant by the requirement that the lead defense counsel at trial be
familiar with the ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases and it is unclear whether the Arizona Supreme Court
will adopt changes to Rule 6.8 of the Arizona Rules of Criminal Procedure that explicitly
state that a member of the defense team should be trained to screen for mental or
psychological disorders or defects, it correspondingly is unclear whether the State of
Arizona requires or will require any member of the defense team to be qualified by
experience or training to screen for mental or psychological disorders or defects. 131
Based on this information, the State of Arizona is only in partial compliance with
Recommendation #1.
In addition, based on the above findings, the Arizona Death Penalty Assessment Team
makes the following recommendations:
(1)

The State of Arizona should create an adequately funded statewide public
defender office for capital cases. As with the Arizona Capital Case

127

See, e.g., MARICOPA COUNTY LAW OFFICE OF THE PUBLIC DEFENDER ANNUAL REPORT 2002-2003, at
http://www.pubdef.maricopa.gov/.
128
National Association of Criminal Defense Attorneys, supra note 52.
129
Maricopa County Contract for Attorney Services, supra note 72; Professional Services Contract, supra
note 70.
130
See supra note 98 and accompanying text.
131
Should the Arizona Supreme Court ratify the amendments to Rule 6.8 that were passed by the Arizona
State Bar on May 19, 2006, Arizona would not only require attorneys to be familiar with the ABA
Guidelines, but to comply with them. Should these amendments be enacted, the State of Arizona would
require that a member of the defense team be qualified by experience or training to screen for mental or
psychological disorders or defects.

142

Commission, the Arizona Death Penalty Assessment Team is most
concerned with the availability and quality of trial counsel; and
The State of Arizona should conduct an audit of the Maricopa County’s
Public Defender’s Office, Legal Defender’s Office, Legal Advocate’s
Office, and Office of Contract Counsel to determine if any discrepancies
in average expenditures on capital cases are problematic and signal
differences in the quality of representation.

(2)

B. Recommendation # 2
Qualified Counsel (Guideline 5.1 of the ABA Guidelines on the Appointment
and Performance of Defense Counsel in Death Penalty Cases)
a. The jurisdiction should develop and publish qualification standards for
defense counsel in capital cases. These standards should be construed
and applied in such a way as to further the overriding goal of providing
each client with high quality legal representation.
b. In formulating qualification standards, the jurisdiction should insure:
i.

That every attorney representing a capital defendant has:
(a) obtained a license or permission to practice in the jurisdiction;
(b) demonstrated a commitment to providing zealous advocacy and
high quality legal representation in the defense of capital cases;
and
(c) satisfied the training requirements set forth in Guideline 8.1.

ii. That the pool of defense attorneys as a whole is such that each
capital defendant within the jurisdiction receives high quality legal
representation. Accordingly, the qualification standards should
insure that the pool includes sufficient numbers of attorneys who
have demonstrated:
(a) substantial knowledge and understanding of the relevant state,
federal and international law, both procedural and substantive,
governing capital cases;
(b) skill in the management and conduct of complex negotiations
and litigation;
(c) skill in legal research, analysis, and the drafting of litigation
documents;
(d) skill in oral advocacy;
(e) skill in the use of expert witnesses and familiarity with common
areas of forensic investigation, including fingerprints, ballistics,
forensic pathology, and DNA evidence;
(f) skill in the investigation, preparation, and presentation of
evidence bearing upon mental status;
(g) skill in the investigation, preparation, and presentation of
mitigating evidence; and
(h) skill in the elements of trial advocacy, such as jury selection,
cross-examination of witnesses, and opening and closing
statements.

143

The State of Arizona currently has not adopted the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases, but many of the
requirements set forth in Guideline 5.1 (reproduced above as Recommendation #2) are
required under Rule 6.8 of the Arizona Rules of Criminal Procedure, which provides
minimum qualification requirements for all attorneys handling death penalty cases at
trial, on direct appeal, and in state post-conviction proceedings. 132
As required by ABA Guideline 5.1, Rule 6.8 of the Arizona Rules of Criminal Procedure
relies not only on quantitative measures of experience to determine whether an attorney is
qualified to serve as a capital defense attorney, but also requires all appointed attorneys in
capital cases to have “demonstrated the necessary proficiency and commitment which
exemplify the quality of representation necessary in capital cases.” 133 Additionally, Rule
6.8 requires that all attorneys who are appointed in a capital case at trial, on direct appeal,
or in state post-conviction proceedings be members in good standing of the State Bar of
Arizona for at least five years immediately preceding the appointment and have practiced
in the area of state criminal litigation for three years immediately preceding the
appointment. 134
Arizona’s qualification requirements for lead trial attorneys are more expansive than the
requirements for trial-level co-counsel and appellate counsel, but still only require
compliance with some of the requirements contained in Guideline 5.1. In addition to (1)
being a member in good standing of the State Bar of Arizona for at least five years
immediately preceding the appointment; (2) having practiced in the area of state criminal
litigation for three years immediately preceding the appointment; and (3) having
demonstrated the necessary proficiency and commitment which exemplify the quality of
representation appropriate to capital cases, 135 lead trial counsel must:
(1)
(2)

(3)
(4)

Have practiced in the area of state criminal litigation for five years
immediately preceding the appointment;
Have been lead counsel in at least nine felony jury trials that were tried to
completion and have been lead counsel or co-counsel in at least one
capital murder jury trial;
Be familiar with the ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases; 136 and
Have attended and successfully completed, within one year prior to the
initial appointment, at least six hours of relevant training or educational
programs in the area of capital defense, and within one year prior to any
subsequent appointment, at least twelve hours or relevant training or
educational programs in the area of criminal defense. 137

Arizona law does not require lead trial attorneys to have demonstrated skills in all of the
areas contained in Guideline 5.1, however, such as legal research, analysis and writing.
132
133
134
135
136
137

ARIZ. R. CRIM. P. 6.8.
ARIZ. R. CRIM. P. 6.8(a)(3).
ARIZ. R. CRIM. P. 6.8(a).
ARIZ. R. CRIM. P. 6.8(a).
See supra note 39.
ARIZ. R. CRIM. P. 6.8(b)(1).

144

In addition, the training required under Arizona law falls short of the requirements listed
above (which will be discussed in detail under Recommendation #5).
Similarly, trial-level co-counsel, in addition to (1) being a member in good standing of
the State Bar of Arizona for at least five years immediately preceding the appointment;
(2) having practiced in the area of state criminal litigation for three years immediately
preceding the appointment; and (3) having demonstrated the necessary proficiency and
commitment which exemplify the quality of representation appropriate to capital cases, 138
must have attended and successfully completed, within one year prior to the initial
appointment, at least six hours of relevant training or educational programs in the area of
capital defense, and within one year prior to any subsequent appointment, at least twelve
hours of relevant training or educational programs in the area of criminal defense. 139
Again, Arizona law does not require trial-level co-counsel to have demonstrated skills in
all of the areas contained in Guideline 5.1, such as legal research, analysis and writing,
and the training required under Arizona law falls short of the requirements of Guideline
5.1. 140
On direct appeal and in state post-conviction proceedings, Arizona law requires that to be
eligible for appointment, an attorney must, in addition to (1) being a member in good
standing of the State Bar of Arizona for at least five years immediately preceding the
appointment; (2) having practiced in the area of state criminal litigation for three years
immediately preceding the appointment; and (3) having demonstrated the necessary
proficiency and commitment which exemplify the quality of representation appropriate to
capital cases: 141
(1)

(2)

Within three years immediately preceding the appointment, have been lead
counsel in an appeal or post-conviction proceeding in a case in which a
death sentence was imposed, as well as prior experience as lead counsel in
the appeal of at least three felony convictions and at least one postconviction proceeding that resulted in an evidentiary hearing or have been
lead counsel in the appeal of at least six felony convictions, at least two of
which were appeals from first or second degree murder convictions, and
lead counsel in at least two post-convictions proceedings that resulted in
evidentiary hearings; and
Have attended, within one year prior to the initial appointment, at least six
hours of relevant training or educational programs in the area of capital
defense, and within one year prior to any subsequent appointment, at least
twelve hours of relevant training or educational programs in the area of
criminal defense. 142

Arizona law also requires that appointed post-conviction counsel not have represented the
defendant at trial or on direct appeal, “unless the defendant and counsel expressly request

138
139
140
141
142

ARIZ. R. CRIM. P. 6.8 (a).
ARIZ. R. CRIM. P. 6.8(b)(2); see also supra note 41.
See supra note 41.
ARIZ. R. CRIM. P. 6.8(a).
ARIZ. R. CRIM. P. 6.8(c); ARIZ. REV. STAT. § 13-4041(C) (2006).

145

continued representation and waive all potential issues that are foreclosed by continued
representation.” 143
Furthermore, the newly created position of state capital post-conviction public defender is
required to, in addition to meeting or exceeding the requirements set forth in Arizona
Rule of Criminal Procedure 6.8, be a member in good standing of the state bar of Arizona
or become a member of the state bar of Arizona within one year after appointment, have
been a member of the state bar of Arizona or admitted to practice in any other state for
the five year immediately preceding the appointment, and have had substantial
experience in the representation of accused or convicted person in criminal of juvenile
proceedings. 144
However, at trial, Arizona law does not require attorneys on appeal or in state postconviction proceedings to have demonstrated skills in all of the areas contained in
Guideline 5.1, such as legal research, analysis and writing, and the training required
under Arizona law falls short of the requirements of Guideline 5.1.
Furthermore, in exceptional circumstances, and with the consent of the Arizona Supreme
Court, an attorney may be appointed at trial, on appeal, or in state post-conviction
proceedings who does not meet the appointment requirements, so long as the attorney’s
experience, stature, and record allow the court to conclude that the attorney’s ability
significantly exceeds the standards and the attorney associates with a lawyer who does
meet the standards. 145
Some county-based appointing authorities and/or public defender offices require
attorneys to meet additional qualifications beyond those required by Arizona law. For
example, the Pima County Office of Court Appointed Counsel requires that private
attorneys, in applying to accept capital trial or appellate appointments, agree to comply
with the performance standards contained in the ABA Guidelines on the Appointment and
Performance of Defense Attorneys in Death Penalty Cases. 146 Other county-based
appointing authorities and/or public defender offices do not have requirements beyond
those articulated in Arizona law, however, including but not limited to the Pinal and
Mohave County Superior Courts. 147 Furthermore, as discussed throughout this report,
the State Bar of Arizona passed and submitted to the Arizona Supreme Court in May
2006 a recommendation that Rule 6.8 of the Arizona Rules of Criminal Procedure be
amended to require that trial counsel in capital cases “be familiar with” the ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases and “comply” with Guidelines 1.1, 10.2, 10.3, 10.4(B)-(D), 10.5, 10.6, 10.7, 10.8,
10.9.1, 10.9.2, 10.10.1, 10.10.2, 10.11, 10.12, 10.13, and 10.14. The amendment also
would require appellate and post-conviction counsel to be familiar with the Guidelines
and to comply with Guideline 1.1, 10.15.1, and 10.15.2. The Arizona Supreme Court is
expected to accept or reject this amendment later this year.
143

ARIZ. REV. STAT. § 13-4041(C)(3) (2006).
ARIZ. REV. STAT. § 41-4251(D) (2006).
145
ARIZ. R. CRIM. P. 6.8(d); see also supra note 45.
146
Professional Services Contract, supra note 70.
147
Telephone interview with Judge Johnson, Pinal County Superior Court (on file with author); telephone
interview with Judge Moon, Mohave County Superior Court (on file with author).
144

146

Despite the qualification standards required by Arizona law, the problem of ineffective
assistance of counsel is real. The Arizona Capital Case Commission found that between
1974 and 2000, nineteen defendants had their cases reversed, remanded, or modified as a
result of ineffective assistance of counsel. Of these nineteen cases, thirteen were granted
resentencings and six defendants were granted new trials. 148 As a result, Commission
members “urge[d] Superior Court judges to verify early in a capital case that counsel are
competent under the standards in Rule 6.8. Commission members also urge[d] judges to
hold hearings, if necessary, to advise defendants regarding competency of counsel, as is
done when issues arise regarding possible conflicts of interest on the part of defense
counsel.” 149 To the best of our knowledge, neither recommendation has been
implemented in any systematic, statewide manner.
In addition, the Capital Case Commission recommended that Rule 1.1 of the Arizona
Rules of Professional Conduct be amended to state:
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation. A lawyer who represents a capital defendant shall
comply with the standards set forth in Ariz. R. Crim. P. 6.8
regarding standards for appointment of counsel in capital cases. 150
As of June 2006, this change to the Arizona Rules of Professional Conduct had not been
made.
In conclusion, we commend the State of Arizona for developing and publishing
qualification standards for defense counsel at every level of the judicial proceedings in
capital cases, and for requiring lead trial counsel to be familiar with the ABA Guidelines
on the Appointment and Performance of Defense Attorneys in Death Penalty Cases. We
also commend the State Bar of Arizona for requesting that the Arizona Rules of Criminal
Procedure be amended to include a requirement that defense counsel comply with the
performance requirements set forth in the Guidelines. We are unable to conclude,
however, that the State of Arizona has effective and enforceable qualification standards
that comply with the entirety of Guideline 5.1, as the State of Arizona only requires
attorneys handling death penalty cases to possess some, but not all, of those qualification
requirements. The State of Arizona, therefore, is only in partial compliance with
Recommendation #2.
C. Recommendation # 3
The selection and evaluation process should include:
a. A statewide independent appointing authority, not comprised of judges
or elected officials, consistent with the types of statewide appointing
148
149
150

OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 17 (Dec. 2002).
Id.
Id. (emphasis added to indicate suggested new language).

147

authority proposed by the ABA (see, American Bar Association Policy
Recommendations on Death Penalty Habeas Corpus, paragraphs 2 and
3, and Appendix B thereto, proposed section 2254(h)(1), (2)(I), reprinted
in 40 Am. U. L. Rev. 1, 9, 12, 254 (1990), or ABA Death Penalty
Guidelines, Guideline 3.1 Designation of a Responsible Agency), such as:

i. A defender organization that is either:
(a) a jurisdiction-wide capital trial office, relying on staff attorneys,
members of the private bar, or both to provide representation in
death penalty cases; or
(b) a jurisdiction-wide capital appellate and/or post-conviction
defender office, relying on staff attorneys, members of the
private bar, or both to provide representation in death penalty
cases; or
ii. An “Independent Authority,” that is, an entity run by defense
attorneys with demonstrated knowledge and expertise in capital
representation.

The State of Arizona does not vest in one statewide independent appointing authority the
responsibility for training, selecting, and monitoring attorneys who represent indigent
individuals charged with or convicted of a capital felony pre-trial, at trial, or on appeal,
despite the fact that the Arizona Capital Case Commission unanimously recognized that
“establishing a statewide public defender office for capital cases would be the best and
most effective way to improve death penalty trials in Arizona.” 151 Rather, this
responsibility is divided among Arizona’s fifteen counties; the presiding judge of each
county is responsible for establishing a procedure for the Superior Court or limited
jurisdiction courts to ensure the appointment of counsel for each indigent person entitled
to counsel. 152
The Arizona Supreme Court is required to “establish and maintain a list of qualified
candidates” for appointment in state post-conviction proceedings, however. 153 We note
that because the Arizona Supreme Court is responsible for developing and maintaining
this list, it does not satisfy the ABA requirement that the appointing authority be
independent and separate from the judiciary.
The State of Arizona recently created the state capital post-conviction public defender
office. 154 The state capital post-conviction public defender will be appointed by the
Governor “on the basis of merit alone without regard to political affiliation” from a list of
names that are submitted by the nomination, retention and standards commission on
indigent defense. 155 This state capital post-conviction public defender office qualifies as
a statewide independent appointing authority.

151
152
153
154
155

Id. at 14.
ARIZ. R. CRIM. P. 6.2.
ARIZ. REV. STAT. § 13-4041(C) (2006).
ARIZ. REV. STAT. § 41-4251(A) (2006).
ARIZ. REV. STAT. § 41-4251(C) (2006).

148

The training, selection, and monitoring of counsel will be discussed in Subparts b and c.
We note, however, that these responsibilities relate only to the training, selection, and
monitoring of counsel at trial, on direct appeal, and in state post-conviction proceedings,
and that the State of Arizona does not provide appointed counsel to indigent deathsentenced inmates petitioning for clemency.
b. Development and maintenance, by the statewide independent appointing
authority, of a roster of eligible lawyers for each phase of representation.

To the best of our knowledge, no entity within the State of Arizona has developed and/or
maintains a roster of eligible lawyers for trial or direct appeal. Instead, each county is
responsible for developing its own procedures for appointing counsel to indigent
defendants. Under a recently passed Arizona law, however, the State of Arizona recently
created the state capital post-conviction public defender office 156 that is designed to
“provide representation to any person who is not financially able to employ counsel in
post-conviction relief proceedings in state court after a judgment of death has been
rendered” 157 and does qualify as a statewide independent appointing authority.
In county public defender offices, there generally is one person responsible for assigning
cases to attorneys within the office. In counties without public defender offices, or in
situations when the public defender office(s) is not able to accept the appointment, it is
possible that the court or the office of court appointed counsel may keep a roster of
eligible lawyers for each phase of representation. While we were only able to obtain a
small amount of information about whether and how various counties keep and maintain
lists of attorneys available for appointment, the Pinal County Superior Court reports that
the clerk of the court maintains a list of qualified counsel. 158 In addition, Pima County
requires attorneys interested in representing defendants and/or appellants in capital cases
to sign a “Professional Services Contract;” it is therefore possible that Pima County
maintains a list of attorneys that have signed this contract. 159 But in neither of these
examples is the list developed and maintained by an appointing authority independent of
the judiciary.
c. The statewide independent appointing authority should perform the
following duties:

As indicated above, the State of Arizona does not vest in one statewide independent
appointing authority the responsibility for training, selecting, and monitoring attorneys
who represent indigent individuals charged with or convicted of capital felonies pre-trial,
at trial, or on direct appeal. Consequently, no statewide agency performs the functions
listed above for application in those stages of the process.
Also noted above, the State of Arizona recently created the state capital post-conviction
public defender office 160 that does qualify as a statewide independent appointing
156
157
158
159
160

ARIZ. REV. STAT. § 41-4251(A) (2006).
2006 Ariz. Sess. Laws 369 § 14.
Telephone interview with Judge Johnson, Pinal County Superior Court (on file with author).
Professional Services Contract, supra note 70.
ARIZ. REV. STAT. § 41-4251(A) (2006).

149

authority. The Arizona Supreme Court is responsible for maintaining a list of people
“who are qualified to represent capital defendant in those cases in which the court does
not appoint counsel from the state capital post-conviction public defender office.” 161
Because there is no statewide appointing authority for any part of the capital process
other than state post-conviction, the following answers will address only the appointing
mechanism in post-conviction cases.
i.

Recruit and certify attorneys as qualified to be appointed to represent
defendants in death penalty cases;

The Arizona Supreme Court, after affirming a defendant’s conviction and sentence in a
capital case, is responsible for appointing counsel from the state capital post-conviction
public defender office to represent the defendant in his/her post-conviction proceedings,
unless a conflict exists or the court makes a finding that the office cannot represent the
defendant. 162
The Arizona Supreme Court is responsible for maintaining a list of people “who are
qualified to represent capital defendant in those cases in which the court does not appoint
counsel from the state capital post-conviction public defender office.” 163 To be placed on
the list, an attorney must submit an “Application for Appointment as Counsel in Capital
Post-Conviction Proceedings.” 164 The application requests information that would
enable the court to ensure that an attorney meets the statutory requirements for
appointment. 165
The court initially advertised the availability of the forms through, at a minimum,
publication in the Arizona Business Gazette, Arizona Attorney, Maricopa Lawyer, and
The Writ for Pima County; and mailings to the Arizona Association of Defense Counsel,
Arizona Attorneys for Criminal Justice, all attorneys certified as criminal specialists, the
Arizona Bar Association Section for Criminal Justice, each president of the county bar
associations, the Arizona Bar Association Appellate Practice Section, presiding judges,
the Speaker of the House of Representatives, and the President of the State Senate. 166
As of March 2006, seventeen attorneys qualified for appointment in capital postconviction cases. 167

161

ARIZ. REV. STAT. § 41-4041(C) (2006).
ARIZ. REV. STAT. § 13-4041(B) (2006).
163
ARIZ. REV. STAT. § 41-4041(C) (2006).
164
Admin.
Order
No.
96-53
(Nov.
19,
1996)
at
http://www.supreme.state.az.us/orders/admorder/orders99/pdf96/9653.pdf.
165
Id.
166
Id.
167
Telephone interview with Donna Hallam, Arizona Supreme Court, on Mar. 9, 2006). These numbers
are from before the state post-conviction capital public defender office was created and the Supreme Court
list was the primary method of appointing counsel in state post-conviction cases.
162

150

ii. Draft and periodically publish rosters of certified attorneys;

The Arizona Supreme Court maintains and periodically updates a list of attorneys who
are certified to accept capital post-conviction appointments. This list is not published,
but is available upon request. 168
iii. Draft and periodically publish certification standards and
procedures by which attorneys are certified and assigned to
particular cases;

The certification standards are contained and published in section 13-4041 of the Arizona
Revised Statutes and Rule 6.8 of the Arizona Rules of Criminal Procedure. 169 In cases
not handled by the state capital post-conviction public defender office, we were unable to
determine whether the court has developed procedures by which attorneys are certified
and assigned to particular cases.
iv. Assign the attorneys who will represent the defendant at each stage
of every case, except to the extent that the defendant has private
attorneys;

The Arizona Supreme Court is responsible for appointing counsel from the state capital
post-conviction public defender office to represent the defendant in his/her postconviction proceedings, unless a conflict exists or the court makes a finding that the
office cannot represent the defendant. 170 In cases where the court does not appoint the
state capital post-conviction public defender office to represent the defendant, the
Arizona Supreme Court is responsible for appointing counsel in state post-conviction
proceedings from a list of qualified attorneys.171
v. Monitor the performance of all attorneys providing representation
in capital proceedings;

It does not appear that there is any mechanism to monitor the performance of attorneys
providing representation in capital proceedings, although the Arizona Supreme Court
may remove an attorney from the list of attorneys qualified to receive appointments in
state post-conviction proceedings “if the supreme court determines that the attorney is
incapable or unable to adequately represent a defendant.” 172
vi. Periodically review the roster of qualified attorneys and withdraw
certification from any attorney who fails to provide high quality
legal representation consistent with these Guidelines;

168
169
170
171
172

Id.
ARIZ. REV. STAT. § 13-4041 (2006); ARIZ. R. CRIM. P. 6.8.
ARIZ. REV. STAT. § 13-4041(B) (2006).
ARIZ. REV. STAT. § 13-4041(C) (2006).
Id.

151

People are added to the list of attorneys as their applications are processed. 173 Attorneys
may be removed from the list upon request,174 and in addition, the Arizona Supreme
Court may remove an attorney from the list of attorneys qualified to receive appointments
in state post-conviction proceedings “if the [Court] determines that the attorney is
incapable or unable to adequately represent a defendant.” 175 As of March 2006, the
Arizona Supreme Court had not sought the removal of any attorneys from the list.176
vii.

Conduct, sponsor, or approve specialized training programs for
attorneys representing defendants in death penalty cases; and

It does not appear that the Arizona Supreme Court conducts, sponsors, or approves of any
specialized training programs for attorneys representing defendants in capital postconviction proceedings. The state capital post-conviction public defender office may
fund or sponsor training for attorneys within the office, but it is not allowed to fund or
sponsor training for attorneys outside of the office. 177
viii. Investigate and maintain records concerning complaints about the
performance of attorneys providing representation in death
penalty cases and take appropriate corrective action without delay.

It does not appear that the Arizona Supreme Court investigates or maintains records
concerning complaints about the performance of attorneys providing capital postconviction representation.
In conclusion, the State of Arizona has failed to remove the judiciary from the attorney
training, selection, and monitoring process. While Arizona recently created the state
capital post-conviction public defender office, the Arizona Supreme Court is responsible
for appointing post-conviction counsel in conflict cases and some or all of the county trial
and appellate county appointment systems rely on the local judiciary as the appointing
authority. Additionally, the State of Arizona has not vested with one or more
independent agencies all of the responsibilities contained in Recommendation #3. For
example, no independent entity within the State of Arizona is responsible for drafting or
publishing a roster of certified trial and appellate attorneys or for monitoring,
investigating, and maintaining records concerning the performance of all attorneys
handling death penalty cases. Based on this information, the State of Arizona is not in
compliance with Recommendation #3.
D. Recommendation # 4
Compensation for Defense Team (Guideline 9.1 of the ABA Guidelines on
the Appointment and Performance of Defense Counsel in Death Penalty
Cases):

173
174
175
176
177

Telephone interview with Donna Hallam, Arizona Supreme Court, on Mar. 9, 2006.
Id.
ARIZ. REV. STAT. § 13-4041(C) (2006).
Telephone interview with Donna Hallam, Arizona Supreme Court, on Mar. 9, 2006.
ARIZ. REV. STAT. § 13-4251(F)(5) (2006).

152

a. The jurisdiction should ensure funding for the full cost of high quality
legal representation, as defined by the ABA Guideline 9.1, by the defense
team and outside experts selected by counsel. 178

The State of Arizona requires that indigent defendants at trial, on direct appeal, and in
state post-conviction proceedings receive appointed counsel, but the State provides only a
small amount of funding for the cost of legal representation. The counties are responsible
for the funding costs associated with trial and appellate work, although the State provides
half of the cost of counsel in state post-conviction proceedings. 179 Overall, between 98%
and 99% of all funding for Arizona’s indigent defense system is provided by counties. 180
With the exception of clemency proceedings, Arizona law authorizes that “[i]f a person is
charged with a felony offense the court may on its own initiative and shall on application
of the defendant and a showing that the defendant is financially unable to pay for such
services appoint investigators and expert witnesses as are reasonably necessary to
adequately present a defense at trial and at any subsequent proceeding.” 181 In a capital
case, Arizona law authorizes that an indigent defendant may apply for the appointment of
an investigator, an expert witness, and a mitigation specialist. 182 Arizona law also allows
“for investigative and expert services that are reasonably necessary” in state postconviction proceedings. 183
Despite the fact that Arizona law guarantees counsel to indigent inmates through state
post-conviction proceedings, the Arizona Capital Case Commission, noted that it is
“difficult recruiting public defenders in the rural counties and [that] the lack of resources
needed to bring competent lawyers from urban areas into the rural areas for capital
defense work” caused problems. As a result, the Commission recommended the creation
of a statewide public defender office for capital cases.184 The Commission submitted
legislation to the 2001 and 2002 State Legislative Sessions that would have created a
statewide defender organization to include trial defenders for rural Arizona and postconviction attorneys for all of Arizona, but the legislation failed. 185 Legislation passed in
2006 that creates a state capital post-conviction public defender office, but it does not
address the issue of trial-level counsel.
b. Counsel in death penalty cases should be fully compensated at a rate
that is commensurate with the provision of high quality legal

178

In order for a state to ensure funding for the “full cost of high quality legal representation,” it must be
responsible for “paying not just the direct compensation of members of the defense team, but also the costs
involved with the requirements of the[] Guidelines for high quality representation (e.g. Guideline 4.1
[Recommendation #1], Guideline 8.1 [Recommendation #5]).” See American Bar Association, ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA
L. REV. 913, 984-85 (2003).
179
ARIZ. REV. STAT. § 13-4041(H) (2006).
180
ARIZONA CRIMINAL JUSTICE COMMISSION, supra note 7; see also The Spangenberg Group, supra note
6; National Association of Criminal Defense Attorneys, supra note 52.
181
ARIZ. REV. STAT. § 13-4013(B) (2006).
182
ARIZ. R. CRIM. P. 15.9(a).
183
ARIZ. REV. STAT. § 13-4013(J) (2006).
184
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 14 (Dec. 2002).
185
Id.

153

representation and reflects the extraordinary responsibilities inherent in
death penalty representation.
i.

Flat fees, caps on compensation, and lump-sum contracts are
improper in death penalty cases.
ii. Attorneys employed by defender organizations should be
compensated according to a salary scale that is commensurate with
the salary scale of the prosecutor’s office in the jurisdiction.
iii. Appointed counsel should be fully compensated for actual time and
service performed at an hourly rate commensurate with the
prevailing rates for similar services performed by retained counsel
in the jurisdiction, with no distinction between rates for services
performed in or out of court. Periodic billing and payment should
be available.

The compensation paid to attorneys who represent indigent individuals charged with a
capital felony differs by county, subject to the statutory requirement that the
compensation be in an amount that the court deems reasonable. 186 The amount of
reasonable compensation is determined as provided by local rule and section 13-4013 of
the A.R.S. and should take into consideration “the hours worked, the experience of
counsel, the quality of the work performed, and any amount actually paid by the
defendant.” 187 “The aggregate amount paid by the defendant and the county may not
exceed the full amount paid by the county alone to the appointed attorneys in comparable
cases.” 188
In state post-conviction proceedings, Arizona law requires that court appointed counsel
be compensated at a rate “not to exceed” $100 per hour. 189 If the number of hours
worked by counsel exceeds 200, counsel still is entitled to compensation, so long as s/he
shows “good cause.” 190
The hourly rate and the per-case maximum paid to contract and court-appointed attorneys
for trial and direct appeal varies by county. 191 For example, Pima County public
defender attorney salaries range from approximately $37,500 to $90,000. 192 In addition,
its contract attorneys receive $75 per hour, not to exceed $15,000 without prior approval
of the court, to be the lead attorney in trial-level and appellate capital representation.
Trial-level co-counsel is eligible to receive $60 per hour, not to exceed $7,500 without
prior approval of the court. 193
In Maricopa County, the starting salary for a public defender in 2001 was $42,453. 194
Contract attorneys receive a flat fee of $10,000 per capital case with an additional

186
187
188
189
190
191
192
193
194

ARIZ. REV. STAT. § 13-4013(A) (2006).
ARIZ. R. CRIM. P. 6.7(b).
Id.
ARIZ. REV. STAT. § 13-4041(F) (2006).
ARIZ. REV. STAT. § 13-4041(G) (2006).
The Spangenberg Group, supra note 6.
National Association of Criminal Defense Attorneys, supra note 52.
Professional Services Contract, supra note 70; see also The Spangenberg Group, supra note 6.
National Association of Criminal Defense Attorneys, supra note 52.

154

$10,000 if the case goes to trial. 195 On appeal, contract attorneys receive $20,000 per
case. 196
In rural counties, the salaries in public defender offices tend to range between $35,000
and $90,000. 197 In Yavapai County, some defense counsel enter into contracts that pay a
flat fee, often $70,000, for representation in a set number of cases and Graham County
also uses contract attorneys who are paid $80,000 to provide representation in a hundred
cases. 198 Pinal and Mohave counties pay contract attorneys $100 per hour. 199
c. Non-attorney members of the defense team should be fully compensated
at a rate that is commensurate with the provision of high quality legal
representation and reflects the specialized skills needed by those who
assist counsel with the litigation of death penalty cases.
i.

Investigators employed by defender organizations should be
compensated according to a salary scale that is commensurate with
the salary scale of the prosecutor’s office in the jurisdiction.
ii. Mitigation specialists and experts employed by defender
organizations should be compensated according to a salary scale that
is commensurate with the salary scale for comparable expert
services in the private sector.
iii. Members of the defense team assisting private counsel should be
fully compensated for actual time and service performed at an
hourly rate commensurate with prevailing rates paid by retained
counsel in the jurisdiction for similar services, with no distinction
between rates for services performed in or out of court. Periodic
billing and payment should be available.

Given that death-sentenced inmates are not entitled to appointed counsel or resources for
investigators or experts during clemency proceedings, the State of Arizona only provides
resources for investigators and experts to attorneys handling death penalty cases at trial,
on direct appeal, and in state post-conviction proceedings. Arizona law authorizes that
“[i]f a person is charged with a felony offense the court may on its own initiative and
shall on application of the defendant and a showing that the defendant is financially
unable to pay for such services appoint investigators and expert witnesses as are
reasonably necessary to adequately present a defense at trial and at any subsequent
proceeding.” 200 In a capital case, Arizona law authorizes that an indigent defendant may
apply for the appointment of an investigator, an expert witness, and a mitigation
specialist. 201 Arizona law also allows the trial court to “authorize additional monies to
195

Maricopa County Contract for Attorney Services, supra note 72; see also The Spangenberg Group,
supra note 6.
196
Maricopa
County
Contract
for
Attorney
Services,
Serial
04021-ROQ,
at
(last
http://www.maricopa.gov/ContractCounsel/Assets/Documents/FY04-05/04021-Appeals-PCR.pdf
visited March 2, 2006).
197
National Association of Criminal Defense Attorneys, supra note 52.
198
Id.
199
Telephone Interview with Judge Johnson, Superior Court Judge, Pinal County Superior Court, on Feb.
28, 2006; Telephone Interview with Judge Robert R. Moon, Superior Court Judge, Mohave County
Superior Court, on Feb. 28, 2006.
200
ARIZ. REV. STAT. § 13-4013(B) (2006).
201
ARIZ. R. CRIM. P. 15.9(a).

155

pay for investigative and expert services that are reasonably necessary” in state postconviction proceedings. 202
At trial and on appeal, the costs for experts will be paid by the prosecuting county so long
as the defendant can show that the expert assistance is “reasonably necessary to present a
defense adequately at trial or sentencing.” 203 Appointed experts will be compensated at
the rate the county contracts for those services. 204 “If a necessary expert witness
represents a discipline or has a skill that is not then the subject of a county contract, the
county may either promptly procure those services . . . or ask the court to establish a
reasonable fee for that witness. If no investigator or expert witness who is under contract
with the county to provide services is available and the defendant is unable to obtain such
services at the county rate, the court shall establish a reasonable fee for the expert witness
or investigator providing the service.” 205 In state post-conviction proceedings, the county
will be reimbursed for half of the expert and investigative services approved by the trial
court. 206
Some public defender offices, including Maricopa County, have experts on staff,
including investigators and mitigation specialists, and consequently do not have to ask
the court for funds for expert assistance.207 According to the National Association of
Criminal Defense Lawyers, however, other “[p]ublic defender offices, especially in rural
counties, have to beg for more money for experts and investigators.” 208
Contract attorneys, at least in some counties, must request funds for experts from the
court. For example, in Maricopa and Pima counties, attorneys are required to obtain preapproval for the expenses associated with hiring an expert or investigator. 209
The payment range for experts employed by public defender offices is unknown and,
consequently, we cannot assess whether the salaries for these employees are
commensurate with the salary scale of the prosecutor’s office.
d. Additional compensation should be provided in unusually protracted or
extraordinary cases.

The issue of additional compensation in unusually protracted or extraordinary cases is
technically not a concern in cases where a public defender is providing representation as
these attorneys are salaried employees.
In cases in which a contract attorney is providing representation, it appears that a decision
as to whether or not attorneys will be compensated for their time in protracted or
202

ARIZ. REV. STAT. § 13-4013(J) (2006).
ARIZ. R. CRIM. P. 15.9(a).
204
ARIZ. REV. STAT. § 13-4013(C) (2006).
205
Id.
206
ARIZ. REV. STAT. § 13-4013(I) (2006).
207
See, e.g., MARICOPA COUNTY LAW OFFICE OF THE PUBLIC DEFENDER ANNUAL REPORT 2002-2003 at
http://www.pubdef.maricopa.gov/.
208
National Association of Criminal Defense Attorneys, supra note 52.
209
Maricopa County Contract for Attorney Services, supra note 72; Professional Services Contract, supra
note 70.
203

156

extraordinary cases depends on what stage in the capital process they are providing
representation and the county in which the case is being heard.
At trial and on direct appeal, Arizona law requires that appointed counsel in criminal
cases “shall be paid by the county in which the court presides” 210 and the availability of
additional compensation varies from county to county. In the few counties where we
were able to collect the relevant information, it does appear that additional compensation
is allowed in unusually protracted or extraordinary cases.
For example, in Pima County, lead counsel receives $75 per hour for representation at
trial and on direct appeal, but the amount should not exceed $15,000 without prior
approval of the court. Trial-level co-counsel is eligible to receive $60 per hour, not to
exceed $7,500 without prior approval of the court. 211 The provision allowing for
additional payments upon approval of the court would allow, at least in theory, additional
payments in unusually protracted or extraordinary cases. 212
Alternatively, in Maricopa County, contract attorneys receive a flat fee of $10,000 per
capital case with an additional $10,000 if the case goes to trial. 213 On appeal, attorneys
receive $20,000 per case. 214 These flat-fee payments seem to allow the attorney to
petition the Contract Administrator for additional compensation in extraordinary cases. 215
In Pinal County, contract attorneys receive $100 per hour with an assumed 120 hour cap.
An attorney may submit a written request to exceed this limit, however. 216
In Yavapai County, however, some defense counsel enter into contracts that pay a flat
fee, often $70,000, for representation in a set number of cases and Graham County also
uses contract attorneys who are paid $80,000 to provide representation in 100 cases. 217 It
is unclear whether these contracts allow for additional payments in unusually protracted
or extraordinary cases, although it appears, at least in Yavapai and Graham counties, that
flat fee contracts would not allow for additional payments to be provided.
Alternatively, in state post-conviction proceedings, Arizona law requires that court
appointed counsel be compensated at a rate “not to exceed” $100 per hour. 218 “The
attorney may establish good cause for additional fees by demonstrating that the attorney
spent over two hundred hours representing the defendant in the proceedings. The court
shall review and approve additional reasonable fees and costs. If the attorney believes
210

ARIZ. REV. STAT. § 13-4013(A) (2006).
Professional Services Contract, supra note 70; see also The Spangenberg Group, supra note 6.
212
See Request for Extraordinary Fees and/or Expenses, Office of Court Appointed Counsel, at
http://www.pima.gov/ocac/forms/requestforextraordinaryfees.pdf (last visited Mar. 8, 2006).
213
Maricopa County Contract for Attorney Services, supra note 72; see also The Spangenberg Group,
supra note 6.
214
Maricopa
County
Contract
for
Attorney
Services,
Serial
04021-ROQ,
at
http://www.maricopa.gov/ContractCounsel/Assets/Documents/FY04-05/04021-Appeals-PCR.pdf
(last
visited March 2, 2006).
215
Id.
216
Telephone interview with Judge Johnson, Pinal County Superior Court (on file with author).
217
National Association of Criminal Defense Attorneys, supra note 52.
218
ARIZ. REV. STAT. § 13-4041(F) (2006).
211

157

that the court has set an unreasonably low hourly rate or if the court finds that the hours
the attorney spent over the two hundred hour threshold are unreasonable, the attorney
may file a special action with the Arizona supreme court.” 219 If counsel is appointed in
successive post-conviction relief proceedings, compensation will be paid in an amount
that the court deems reasonable, considering the services performed. 220
e. Counsel and members of the defense team should be fully reimbursed
for reasonable incidental expenses.

The issue of compensation for reasonable incidental expenses is not technically a concern
in cases where a public defender is providing representation as these attorneys are
salaried employees and may seek reimbursement for incidental expenses from their
office.
In cases where a contract attorney is providing representation, counties have the
discretion to determine what “reasonable” expenses will be reimbursed. In Mohave
County, court appointed attorneys may be eligible to receive reimbursement for long
distance telephone charges, extraordinary postage, online research, and travel expenses.
In the past, the court also has paid for the trial clothes of indigent defendants. 221 In Pinal
County, the court will reimburse for postage, long distance telephone charges, copying
costs, and travel expenses. The practice in Pinal County is to seek approval in advance
for expenses greater than $100. 222 In Pima County, the court will reimburse for the costs
associated with long distance telephone charges, postage (other than routine mail), travel
mileage, copying, interpreters, and court reporters. 223
In conclusion, because Arizona allows individual counties to set payment rates for
attorneys in capital cases at trial and on appeal, we did not obtain sufficient information
to appropriately assess whether the State of Arizona has ensured funding for the full cost
of high quality representation. Therefore, we are unable to assess whether the State of
Arizona is in compliance with Recommendation #4.
E. Recommendation #5
Training (Guideline 8.1 of the ABA Guidelines on the Appointment and
Performance of Defense Counsel in Death Penalty Cases)
a. The jurisdiction should provide funds for the effective training,
professional development, and continuing education of all members of
the defense team.

Training, professional development, and continuing education is required for some, but
not all, members of the defense team. Rule 6.8 of the Arizona Rules of Criminal
219

ARIZ. REV. STAT. § 13-4041(G) (2006).
ARIZ. REV. STAT. §§ 13-4013(A), 13-4041(G) (2006).
221
Telephone interview with Judge Robert R. Moon, Mohave County Superior Court (on file with
author).
222
Telephone interview with Judge Johnson, Pinal County Superior Court (on file with author).
223
Telephone interview with Phil Mahoney, Administrative Attorney, Pima County Office of Court
Appointed Counsel (on file with author).
220

158

Procedure requires that all appointed trial, appellate, and post-conviction counsel must
have “attended and successfully completed, within one year prior to the initial
appointment, at least six hours of relevant training or educational programs in the area of
capital defense, and within one year prior to any subsequent appointment, at least twelve
hours of relevant training or educational programs in the area of criminal defense.” 224
There is no state law provision mandating training for other members of the defense
team. Despite this, the Arizona Public Defenders Association hosts an annual statewide
conference each June that is open to attorneys and staff members in public defender
offices and offers programs on a variety of topics. 225
Because Arizona’s indigent defense system is funded almost entirely at the county level,
it does not appear that the State provides funding for this required attorney training.
County boards of supervisors provide indigent defense offices with general budgets.
Those offices may then choose to spend money on training, but are not required to do so.
In addition, the Arizona Supreme Court provides $2 of the $12 fee assessed on people
who pay a court ordered penalty, fine, or sanction to county public defender officers for
costs associated with training. 226
It does not appear that any money for training is provided to private attorneys who are
appointed to represent capital defendants/appellants.
b. Attorneys seeking to qualify to receive appointments should be required
to satisfactorily complete a comprehensive training program, approved
by the independent appointing authority, in the defense of capital cases.
Such a program should include, but not be limited to, presentations and
training in the following areas:
i. Relevant state, federal, and international law;
ii. Pleading and motion practice;
iii. Pretrial investigation, preparation, and theory development
regarding guilt/innocence and penalty;
iv. Jury selection;
v. Trial preparation and presentation, including the use of experts;
vi. Ethical considerations particular to capital defense representation;
vii. Preservation of the record and of issues for post-conviction review;
viii.Counsel’s relationship with the client and his family;
ix. Post-conviction litigation in state and federal courts;
x. The presentation and rebuttal of scientific evidence, and
developments in mental health fields and other relevant areas of
forensic and biological science;
xi. The unique issues relating to the defense of those charged with
committing capital offenses when under the age of 18.

As discussed above, Rule 6.8 of the Arizona Rules of Criminal Procedure requires that all
appointed trial, appellate and post-conviction counsel must have “attended and
successfully completed, within one year prior to the initial appointment, at least six hours
224
225
226

ARIZ. R. CRIM. P. 6.8(b), (c).
See Arizona Public Defender Association, at http://www.apdanet.org/ (last visited Feb. 26, 2006).
ARIZ. REV. STAT. § 12-116(B) (2006).

159

of relevant training or educational programs in the area of capital defense, and within one
year prior to any subsequent appointment, at least twelve hours or relevant training or
educational programs in the area of criminal defense.” 227 The Arizona Rules of Criminal
Procedure do not require the specialized training to include presentations and training on
all of the issues listed above. Training on “capital defense” certainly could include
presentations and training on all of the issues listed above, but attorneys are not required
to take training that covers all of these issues.
c. Attorneys seeking to remain on the roster or appointment roster should be
required to attend and successfully complete, at least once every two years, a
specialized training program approved by the independent appointing authority
that focuses on the defense of death penalty cases.

Rule 6.8 of the Arizona Rules of Criminal Procedure requires attorneys handling death
penalty trials, direct appeals, and state post-conviction proceedings to have attended and
successfully completed at least six hours of relevant training or educational programs in
the area of capital defense within one year prior to being appointed and at least twelve
hours of relevant training or educational programs in the area of criminal defense within
one year prior to any subsequent appointment. 228
d. The jurisdiction should insure that all non-attorneys wishing to be eligible to
participate on defense teams receive continuing professional education
appropriate to their areas of expertise.

Arizona does not require non-attorneys who wish to be eligible to participate on defense
teams to receive continuing professional education appropriate to their areas of expertise.
In conclusion, the State of Arizona provides only limited funding for the training,
professional development, and continuing legal education of public defenders. It does
not provide any funding for the training, professional development, and continuing legal
education of contract attorneys or other members of the defense team. Therefore, the
State of Arizona is not in compliance with Recommendation #5.

227
228

ARIZ. R. CRIM. P. 6.8(b), (c).
Id.

160

CHAPTER SEVEN
DIRECT APPEAL PROCESS
INTRODUCTION TO THE ISSUE
Every death-row inmate must be afforded at least one level of judicial review. 1 This
process of judicial review is called the direct appeal. As the United States Supreme Court
stated in Barefoot v. Estelle, “[d]irect appeal is the primary avenue for review of a
conviction or sentence, and death penalty cases are no exception.” 2 The direct appeal
process in capital cases is designed to correct any errors in the trial court’s findings of
fact and law and to determine whether the trial court’s actions during the guilt/innocence
and sentencing phases of the trial were unlawful, excessively severe, or an abuse of
discretion.
One of the best ways to ensure that the direct appeal process works as it is intended is
through meaningful comparative proportionality review. Comparative proportionality
review is the process through which a sentence of death is compared with sentences
imposed on similarly situated defendants to ensure that the sentence is not
disproportionate. Meaningful comparative proportionality review helps to (1) ensure that
the death penalty is being administered in a rational, non-arbitrary manner, (2) provide a
check on broad prosecutorial discretion, and (3) prevent discrimination from playing a
role in the capital decision-making process.
Comparative proportionality review is the most effective method of protecting against
arbitrariness in capital sentencing. In most capital cases, jurors determine the sentence,
yet they are neither equipped nor have the information necessary to evaluate the propriety
of that sentence in light of the sentences in similar cases. In the relatively small number
of cases in which the trial judge determines the sentence, proportionality review still is
important, as the judge may be unaware of statewide sentencing practices or be affected
by public or political pressure. Regardless of who determines the sentence, dissimilar
results are virtually ensured without the equalizing force of proportionality review.
Simply stating that a particular death sentence is proportional is not enough, however.
Proportionality review should not only cite previous decisions, but should analyze their
similarities and differences and the appropriateness of the death sentence. In addition,
proportionality review should include cases in which a death sentence was imposed,
cases in which the death penalty was sought but not imposed, and cases in which the
death penalty could have been sought but was not.
Because of the role that meaningful comparative proportionality review can play in
eliminating arbitrary and excessive death sentences, states that do not engage in the
review, or that do so only superficially, substantially increase the risk that their capital
punishment systems will function in an arbitrary and discriminatory manner.

1
2

Gregg v. Georgia, 428 U.S. 153 (1976).
Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

161

I. FACTUAL DISCUSSION
In Arizona, an individual convicted of capital murder and sentenced to death receives an
automatic appeal to the Arizona Supreme Court, 3 even if s/he pleaded guilty to capital
murder. 4 An individual sentenced to death may have his/her conviction reviewed on
direct appeal in the Arizona Supreme Court and, in some circumstances, the United
States Supreme Court. While the Arizona Supreme Court is required to review any case
where the defendant is convicted of capital murder and sentenced to death, 5 the United
States Supreme Court may exercise discretion in deciding to hear an appeal. 6
A. Standard and Scope of Review
1. Offenses Committed Before August 1, 2002
The Arizona Supreme Court will “independently review the trial court’s findings of
aggravation and mitigation and the propriety of the death sentence” for offenses
committed before August 1, 2002. 7
If the Arizona Supreme Court determines that an error was made regarding a finding of
aggravation or mitigation, it independently will determine, in light of the existing
aggravation, whether the existing mitigation is substantial enough to warrant a sentence
less than death. 8 According to the Arizona Supreme Court:
Unlike appellate review of non-capital crimes, in reviewing the imposition
of the death penalty, we must make an independent determination of the
imposition of that penalty: ‘The gravity of the death penalty requires that
we painstakingly examine the record to determine whether it has been
erroneously imposed. . .we necessarily undertake an independent review
of the facts that establish the presence or absence of aggravating and
mitigating circumstances. . .We must determine for ourselves if the latter
outweigh the former when we find both to be present.’ 9
The Arizona Supreme Court will affirm the death sentence if: (1) it upholds the trial
court’s findings of aggravating and mitigating factors and thereby finds no sufficient
mitigating factors; 10 or (2) determines that the trial court made an error regarding
3

ARIZ. REV. STAT. §§ 13-703.04(A), 13-703.05(A) (2005); see also ARIZ. R. CRIM. P. 26.15; 32.2(b).
See ARIZ. REV. STAT. § 13-4031 (2005); State v. Brewer, 826 P.2d 783, 787 (Ariz. 1992) (en banc).
5
See ARIZ. REV. STAT. §§ 13-703.04(A), 12-120.21(A)(1), 13-4031 (2005); ARIZ. R. CRIM. P. 26.15.
6
ARIZ. SUP. CT. R. 16(2), (3).
7
ARIZ. REV. STAT. § 13-703.04(A) (2005); see also 2002 Ariz. Legis. Serv. Ch.1 (West).
8
ARIZ. REV. STAT. § 13-703.04(B) (2005).
9
State v. Watson, 628 P.2d 943, 945-46 (Ariz. 1981) (en banc) (quoting State v. Richmond, 560 P.2d 41,
51 (Ariz. 1977) (en banc)).
10
See, e.g., State v. Serna, 787 P.2d 1056, 1065 (Ariz. 1990) (en banc); State v. Fulminante, 778 P.2d
602, 619-22 (Ariz. 1990) (en banc); State v. McCall, 770 P.2d 1165, 1177 (Ariz. 1989) (en banc); State v.
Walton, 769 P.2d 1017, 1032-35 (Ariz. 1989) (en banc); State v. Beaty, 762 P.2d 519, 529-31 (Ariz. 1988)
(en banc); State v. Nash, 694 P.2d 222, 234-36 (Ariz. 1985) (en banc); State v. Martinez-Villareal, 702 P.2d
670, 679-80 (Ariz. 1985) (en banc); State v. Hensley, 691 P.2d 689, 694-95 (1984) (en banc); State v.
Clabourne, 690 P.2d 54, 66-68 (Ariz. 1984) (en banc); State v. Harding, 687 P.2d 1247, 1255-56 (Ariz.
4

162

aggravation or mitigation, but that the mitigation found by the Arizona Supreme Court is
not sufficiently substantial to warrant leniency. 11 If the Arizona Supreme Court finds
that an error was made regarding aggravation or mitigation and that the mitigation is
“sufficiently substantial to warrant leniency,” it will reduce the appellant’s sentence to
life imprisonment. 12
The Arizona Supreme Court also may remand the case for further action “if the trial court
erroneously excluded evidence or if the appellate record does not adequately reflect the
evidence presented.” 13
2. Direct Appeals Pending on August 1, 2002
In response to the 2002 U.S. Supreme Court decision in Ring v. Arizona, 14 Arizona’s
legislature rewrote its capital sentencing procedures, including those provisions regarding
the Arizona Supreme Court’s review of capital cases. 15 The new law required that the
Arizona Supreme Court conduct a harmless error review 16 of those cases in which the
defendants were sentenced under the overturned capital sentencing statutes, but had not
yet exhausted their direct appeals.17 Appellants whose cases were final 18 at the time Ring
v. Arizona was decided were not entitled to new sentencing hearings. 19
If the Arizona Supreme Court found that the death sentence imposed under Arizona’s old
capital sentencing procedures contained error that had “prejudiced or tended to prejudice”
the defendant, 20 the Arizona Supreme Court vacated the death sentence and remanded the
case for sentencing under the new jury sentencing statutes. 21 If the Arizona Supreme
Court found that the death sentence imposed under Arizona’s old capital sentencing

1984) (en banc); State v. Fisher, 686 P.2d 750, 755-56 (Ariz. 1984) (en banc); State v. Gretzler, 659 P.2d 1,
16-17 (Ariz. 1983) (en banc); State v. Smith, 638 P.2d 696, 702 (Ariz. 1981) (en banc).
11
See ARIZ. REV. STAT. § 13-703.04(B) (2005); see also, e.g., State v. Wallace, 773 P.2d 983 (Ariz.
1989) (en banc); State v. Vickers, 768 P.2d 1177, 1190-91 (Ariz. 1989) (en banc); State v. Castenada, 724
P.2d 1, 12-14 (Ariz. 1986) (en banc); State v. Villafuerte, 690 P.2d 42, 51 (Ariz. 1984) (en banc).
12
ARIZ. REV. STAT. § 13-703.04(B) (2005).
13
ARIZ. REV. STAT. § 13-703.04(C) (2005).
14
536 U.S. 584 (2002) (holding that Arizona’s capital sentencing scheme violates the right to a jury trial as
guaranteed by the Sixth Amendment of the United States Constitution).
15

See Death Penalty Information Center, U.S. Supreme Court: Ring v. Arizona, at
http://www.deathpenaltyinfo.org/article.php?scid=38&did=247#AZ (last visited Nov. 9, 2005).
16
In defining harmless error, the Arizona legislature has written: “[n]either a departure from the form or
mode prescribed in respect to any pleadings or proceedings, nor an error or mistake therein, shall render the
pleading or proceeding invalid, unless it actually has prejudiced, or tended to prejudice, the defendant in
respect to a substantial right.” ARIZ. REV. STAT. § 13-3987 (2005).
17
State v. Ring, 65 P.3d 915, 925, 933 (Ariz. 2003) (en banc).
18
“A defendant’s case becomes final when ‘a judgment of conviction has been rendered, the availability
of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally
denied.’” State v. Towery, 64 P.3d 828, 831-32 (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6
(1987)).
19
See Towery, 64 P.3d at 835-36.
20
ARIZ. REV. STAT. § 13-3987 (2005).
21
See State v. Hoskins, 65 P.3d 953, 955 (Ariz. 2003) (remanding for resentencing upon conclusion that
the error was not harmless); State v. Phillips, 67 P.3d 1228, 1232 (Ariz. 2003) (remanding for resentencing
upon finding that the error cannot be said to be harmless).

163

procedures had no error or that any error was harmless, the Court affirmed the death
sentence. 22
3. Offenses Committed on or After August 1, 2002
For offenses committed on or after August 1, 2002, independent review of the trial
court’s findings of aggravation and mitigation and the propriety of the death sentence are
no longer required. Instead, under the new statutory scheme, the Arizona Supreme Court
must “review all death sentences to determine whether the trier of fact abused its
discretion in finding aggravating circumstances and imposing a sentence of death.” 23
In a different context, the Arizona Supreme Court has held that an abuse of discretion
occurs “when the decision is characterized by capriciousness or arbitrariness or by a
failure to conduct an adequate investigation into the facts necessary for an intelligent
exercise thereof.” 24 The Arizona Supreme Court limited this holding, however, by
explaining that the imposition of a penalty upon conviction is “entirely within the
discretion of the [trier of fact] and will not be reduced unless it appears clearly that the
sentence imposed is excessive.” 25 The Court has yet to rule on whether this standard is
applicable to juries that impose death sentences.
If the Arizona Supreme Court determines that “an error occurred in the sentencing
proceedings,” it then must determine whether the error was “harmless beyond a
reasonable doubt.” 26 If the Court “cannot determine whether the error was harmless
beyond a reasonable doubt,” it will remand the case for a new sentencing proceeding. 27
If the Arizona Supreme Court determines that the error was harmless, it will affirm the
capital sentence. 28
B. Types of Reversible Error
Regardless of offense date, the Arizona Supreme Court may consider the following types
of error on direct appeal:

22

See, e.g., State v. Sansing, 77 P.3d 30 (Ariz. 2003); State v. Greene, 967 P.2d 106, 119 (Ariz. 1998)
(en banc).
23
ARIZ. REV. STAT. § 13-703.05(A) (2005).
24
State v. Douglas, 349 P.2d 622, 625 (Ariz. 1960).
25
State v. Neese, 616 P.2d 959, 968 (Ariz. Ct. App. 1980) (citing State v. Castano, 360 P.2d 479 (1961)).
See also State v. McGuire, 638 P.2d 1339 (Ariz. 1982) (citation omitted) (holding where a life sentence
was imposed that the Arizona Supreme Court “will not reduce a sentence imposed by the trial court unless
it clearly appears excessive under the circumstances, resulting in an abuse of discretion”); State v. Jones,
385 P.2d 1019, 1022 (Ariz. 1963) (noting that the Supreme Court’s power to reduce a sentence imposed by
a trial court, even in the context of a death penalty case, “should be used with great caution and exercised
only when it clearly appears a sentence is too severe”).
26
ARIZ. REV. STAT. § 13-703.05(B) (2005).
27
Id.
28
See Sansing, 77 P.3d at 39 (holding the improper procedure by which the judge sentenced Sansing to
death to constitute harmless error).

164

1. Structural Error
Structural error “deprive[s] defendants of ‘basic protections’ without which ‘a criminal
trial cannot reliably serve its function as a vehicle for determination of guilt or innocence
. . . and no criminal punishment may be regarded as fundamentally fair.”29 In the limited
circumstances where a court finds structural error, the court automatically will reverse the
guilty verdict. The issues identified by the United States Supreme Court as structural
error include “a biased trial judge, complete denial of criminal defense counsel, denial of
access to criminal defense counsel during an overnight trial recess, denial of selfrepresentation in criminal cases, defective reasonable doubt jury instructions, exclusion
of jurors of the defendant’s race from grand jury selection, excusing a juror because of
his views on capital punishment, and denial of a public criminal trial.” 30
2. Fundamental Trial Error
Fundamental error is defined as error that (1) goes to the foundation of the case, (2) takes
away a right essential to the appellant’s defense, and (3) is of such magnitude that the
defendant could not possibly have received a fair trial. 31 Fundamental error also has been
defined as “clear, egregious, and curable only via a new trial.” 32 In cases where the
Arizona Supreme Court finds that fundamental error has prejudiced the appellant, it may
overturn the trial court’s decision on guilt or sentence, 33 even if the appellant failed to
raise the issue beforehand. 34
C. Procedural Default and Limitations on Review
The Arizona Supreme Court will not review the following types of claims on direct
appeal:
1. Issues Not Raised in the Trial Court
The Arizona justice system “precludes [the] injection of new issues on [direct] appeal.” 35
In most instances, an issue must have been raised in the trial court to be heard on appeal.
This serves: (1) “to create a record to serve as a foundation for review;” and (2) “to allow

29

State v. Ring, 65 P.3d 915, 933 (Ariz. 2003) (en banc) (quoting Neder v. United States, 527 U.S. 1, 8-9
(1999)). Structural error stands in contrast to trial error, which is defined as error that occurs “during the
presentation of the case to the jury” and may be “quantitatively assessed in the context of other evidence
presented.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
30
Ring, 65 P.3d at 933-34 (footnotes omitted).
31
State v. Henderson, 115 P.3d 601, 608 (Ariz. 2005) (en banc).
32
State v. White, 982 P.2d 819, 829 (Ariz. 1999) (en banc).
33
Henderson, 115 P.2d at 607; see also State v. Taylor, 931 P.2d 1077, 1081-1082 (Ariz. Ct. App. 1996)
(supp. op.) (noting that the repeal of section 13-4035 of the A.R.S. does not require appellate courts to
“ignore obvious fundamental error in a criminal proceeding” while also noting that the appellate courts are
no longer obligated to search for fundamental error in a criminal appeal); State v. Mann, 934 P.2d 784, 796
n.1 (1997) (en banc) (Martone, J., concurring) (stating “if in the process of examining issues presented by
way of appeal we stumble across fundamental error, then we have the discretion to address it”).
34
White, 982 P.2d at 829.
35
Id.

165

the lower court an opportunity to weigh and decide the issue.” 36 If an appellant first has
not raised an issue in the trial court, s/he generally waives the right to raise the issue on
direct appeal. 37
General objections may not be enough to preserve an issue for appeal, as the failure to
lodge a specific objection during trial also may constitute waiver of the issue. For
example, in State v. Moody, the Arizona Supreme Court found that defense counsel’s
general objection during voir dire questioning did not preserve the issue of improper
juror dismissals unless counsel specifically objected to the removal of individual jurors. 38
On direct appeal, the Arizona Supreme Court may consider issues that were not raised in
the trial court only if the trial court’s decision on the issue constitutes fundamental
error. 39 This waiver principle applies to both constitutional and non-constitutional
issues. 40
2. Issues Improperly Raised or Argued in Appellate Briefs
Generally, “[f]ailure to [raise or] argue a claim on appeal constitutes waiver of that
claim.” 41 “In Arizona, opening briefs must present significant arguments, supported by
authority, setting forth an appellant’s position on the issues raised. Failure to argue a
claim usually constitutes abandonment and waiver of that claim.” 42 Summarily listing
claims without providing explanatory arguments is not enough to avoid waiver. 43
Therefore, the Arizona Supreme Court will not review claims for which the defendant
failed to present arguments sufficient for appellate review. 44 In addition, claims and
arguments raised in appendices attached to the brief, but not in the body of the brief, will
not be considered. 45
Issues improperly raised or argued may still be reviewed for fundamental error, despite
the defendant’s failure to properly raise or argue the claims. 46
D. Relief Available
The Arizona Supreme Court, in reviewing the conviction of a death-sentenced individual,
may reverse, affirm, or modify the judgment, and may grant a new trial, render a
judgment, or make an order “consistent with the justice and the rights of the [S]tate and
the defendant.” 47

36
37
38
39
40
41
42
43
44
45
46
47

Id.
Id.
State v. Moody, 94 P.3d 1119, 1144-45 (Ariz. 2004) (en banc).
State v. Bolton, 896 P.2d 830, 837 (Ariz. 1995) (en banc) (citations omitted).
Id.
Bolton, 896 P.2d at 837-38.
State v. Carver, 771 P.2d 1382, 1390 (Ariz. 1989) (en banc) (citations omitted).
Carver, 771 P.2d at 1390.
Bolton, 896 P.2d at 838.
Id.
Id; see also supra note 33 and accompanying text.
ARIZ. REV. STAT. §13-4036 (2005).

166

II. ANALYSIS
A. Recommendation #1
In order to (1) ensure that the death penalty is being administered in a
rational, non-arbitrary manner, (2) provide a check on broad prosecutorial
discretion, and (3) prevent discrimination from playing a role in the capital
decision-making process, direct appeals courts should engage in meaningful
proportionality review that includes cases in which a death sentence was
imposed, cases in which the death penalty was sought but not imposed, and
cases in which the death penalty could have been sought.

The Arizona Supreme Court is not required to conduct proportionality review in capital
cases. As late as 1991, the Court would determine whether a death sentence was
“excessive or disproportionate to the penalty imposed in similar cases, considering both
the crime and the defendant.” 48 In 1992, however, the Arizona Supreme Court held that
proportionality reviews were mandated neither by statute nor by the United States or
Arizona Constitutions. 49 Since then, the Court has rejected any arguments that the
absence of proportionality review denies capital defendants equal protection and due
process of law, or that it is tantamount to cruel and unusual punishment. 50
Today, Arizona has no codified procedures, nor any other binding authority, to ensure
proportionate death sentencing. As such, the State of Arizona fails to comply with
Recommendation #1.
Additionally, based on the above findings, the Arizona Death Penalty Assessment Team
makes the following recommendations:
(1)

(2)

48
49
50

Because proportionality is better achieved at the front end rather than the
back end, a capital case review committee housed in the Arizona
Prosecuting Attorneys’ Advisory Council should exercise final discretion
as to whether the death penalty may be sought. The County Attorney may
choose not to seek death, but if s/he desires that capital charges be filed, a
capital case review committee must make the final decision as to the
appropriateness of capital charges; and
Pursuant to the Arizona Capital Case Commission recommendation about
the importance of continued data collection, the State of Arizona should
establish and fund a clearinghouse to collect data on first-degree murder
cases. At a minimum, this clearinghouse should collect data on each
county’s provisions of defense services in capital cases. Relevant
information on all death-eligible cases should be made available to the
Arizona Supreme Court for use in any proportionality review.

State v. Richmond, 560 P.2d 41, 51 (Ariz. 1977) (en banc).
State v. Salazar, 844 P.2d 566, 583-84 (Ariz. 1992) (en banc).
State v. Glassel, 116 P.3d 1193, 1218 (Ariz. 2005) (en banc).

167

168

CHAPTER EIGHT
STATE POST-CONVICTION PROCEEDINGS
INTRODUCTION TO THE ISSUE
The availability of state post-conviction and federal habeas corpus relief through
collateral review of state court judgments long has been an integral part of the capital
punishment process. Very significant percentages of capital convictions and death
sentences have been set aside in such proceedings as a result of ineffective assistance of
counsel claims; claims made possible by the discovery of crucial new evidence; claims
based upon prosecutorial misconduct; unconstitutional racial discrimination in jury
selection; and other meritorious constitutional claims.
The importance of such collateral review to the fair administration of justice in capital
cases cannot be overstated. Because many capital defendants receive inadequate counsel
at trial and on direct appeal, and it is often not possible until after direct appeal to uncover
prosecutorial misconduct or other crucial evidence, state post-conviction proceedings
often provide the first real opportunity to establish meritorious constitutional claims. Due
to doctrines of exhaustion and procedural default, such claims, no matter how valid, must
almost always be presented first to the state courts before they may be considered in
federal habeas corpus proceedings.
Securing relief on meritorious federal constitutional claims in state post-conviction
proceedings or federal habeas corpus proceedings has become increasingly difficult in
recent years because of more restrictive state procedural rules and practices and more
stringent federal standards and time limits for review of state court judgments. Among
the latter are: a one-year statute of limitations on bringing federal habeas proceedings;
tight restrictions on evidentiary hearings with respect to facts not presented in state court
(no matter how great the justification for the omission) unless there is a convincing claim
of innocence; and a requirement in some circumstances that federal courts defer to state
court rulings that the Constitution has not been violated, even if the federal courts
conclude that the rulings are erroneous.
In addition, U.S. Supreme Court decisions and the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA) have greatly limited the ability of a death-row inmate to
return to federal court a second time. Another factor limiting grants of federal habeas
corpus relief is the more frequent invocation of the harmless error doctrine; under recent
decisions, prosecutors no longer are required to show in federal habeas that the error was
harmless beyond a reasonable doubt in order to defeat meritorious constitutional claims.
Changes permitting or requiring courts to decline consideration of valid constitutional
claims, as well as the federal government's de-funding of resource centers for federal
habeas proceedings in capital cases, have been justified as necessary to discourage
frivolous claims in federal courts. In fact, however, a principal effect of these changes
has been to prevent death-row inmates from having valid claims heard or reviewed at all.

169

State courts and legislatures could alleviate some of the unfairness these developments
have created by making it easier to get state court rulings on the merits of valid claims of
harmful constitutional error. The numerous rounds of judicial proceedings does not mean
that any court, state or federal, ever rules on the merits of the inmate's claims– even when
compelling new evidence of innocence comes to light shortly before an execution. Under
current collateral review procedures, a “full and fair judicial review” often does not
include reviewing the merits of the inmate's constitutional claims.

170

I. FACTUAL DISCUSSION
A. Overview of State Post-Conviction Proceedings
1. The Filing of a Post-Conviction Relief Application
In death penalty cases, the Arizona Supreme Court will automatically file a notice of
post-conviction relief with the trial court once the Court has affirmed a petitioner’s
conviction and death sentence on direct appeal. 1 If the petitioner is indigent, the Arizona
Supreme Court 2 then must appoint the petitioner counsel. 3 A petitioner in a capital case,
however, may choose to file a notice of post-conviction relief before the conclusion of
his/her direct appeal. 4
A petitioner must file a post-conviction petition within 120 days of the court filing the
notice of post-conviction relief. 5 The petitioner may be granted a filing extension of
sixty days and extensions of thirty days thereafter if “good cause” is shown. 6 If a
petitioner fails to file a petition within 180 days from the date counsel was appointed, the
date the notice was filed, or the date a request for counsel was denied, the petitioner will
be obligated to file a notice every sixty days, advising the Arizona Supreme Court of the
status of the proceedings until his/her “first post-conviction proceedings have
concluded.” 7
Once a petitioner files a petition for post-conviction relief, s/he may amend the petition
only on a showing of good cause. 8
2. The Contents of Petitions for Post-Conviction Relief and Pre-Hearing Matters
A post-conviction petition must encompass every ground known for overturning the
conviction and/or death sentence. 9 For the court to grant post-conviction relief, the
petition must include at least one of the following claims:
1

ARIZ. REV. STAT. § 13-4234(D) (2005); see also ARIZ. R. CRIM. P. 32.4(a). If an appeal of the
defendant’s conviction and/or sentence is pending before the Arizona Supreme Court or the U.S. Supreme
Court, the clerk must send a copy of the notice to the court in which the appeal is pending within five days
of the filing of the notice for post-conviction relief. ARIZ. REV. STAT. § 13-4234(D) (2005); ARIZ. R. CRIM.
P. 32.4(b).
2
Either the Arizona Supreme Court or the trial court judge authorized by the Arizona Supreme Court
may appoint counsel. ARIZ. REV. STAT. § 13-4041(B) (2006); ARIZ. R. CRIM. P. 32.4(c)(1).
3
ARIZ. REV. STAT. § 13-4041(B) (2006); ARIZ. R. CRIM. P. 32.4(c)(1); ARIZ. REV. STAT. § 13-4234(D)
(2006).
4
See Krone v. Hotham, 890 P.2d 1149, 1152 (Ariz. 1995) (en banc) (noting (1) that rarely will it be
advantageous to file a post-conviction petition before the direct appeal concludes, (2) that “it would be
unwise to preclude early claims of newly discovered exculpatory evidence, which may become more
difficult to try as time passes and which cannot be legally raised on direct appeal,” and (3) that generally a
direct appeal will not be stayed upon the filing of a petition for post-conviction relief).
5
ARIZ. R. CRIM. P. 32.4(c)(1). See also State ex. rel. Napolitano v. Brown, 982 P.2d 815 (Ariz. 1999)
(en banc) (holding that under the separation of powers doctrine the Arizona code provision providing sixty
days to file a petition for post-conviction relief was unconstitutional because it conflicted with the court
rule providing 120 days).
6
ARIZ. R. CRIM. P. 32.4(c)(1).
7
Id.
8
ARIZ. R. CRIM. P. 32.6(d).

171

(1)
(2)
(3)
(4)
(5)
(6)

(7)

(8)

The conviction or the sentence was in violation of the Constitution of the
United States or of the State of Arizona;
The court was without jurisdiction to render judgment or impose sentence;
The sentence imposed exceeded the maximum authorized by law, or is
otherwise not in accordance with the sentence authorized by law;
The person is being held in custody after the sentence imposed has
expired;
Newly discovered material facts probably exist and such facts probably
would have changed the verdict or sentence; 10
The defendant’s failure to file a notice of post-conviction relief of-right or
notice of appeal within the prescribed time was without fault on the
defendant’s part;
There has been a significant change in the law that if determined to apply
to defendant’s case would probably overturn the defendant’s conviction or
sentence; and/or
The defendant demonstrates by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found the defendant guilty of the
underlying offense beyond a reasonable doubt, or that the court would not
have imposed the death penalty. 11

The petition must include any affidavits, records, or other evidence in support of the
allegations. 12 Any alleged facts within the defendant’s personal knowledge must be
noted separately and under oath. 13 In addition, the petition must cite to the record and
legal authority and contain memoranda of points and authorities. 14 In capital cases, the
petition cannot exceed forty pages. 15 If a petition fails to comply with any of these
procedural requirements, the Court will return it to the petitioner for correction.16 The
petitioner must then re-file the revised petition within thirty days of its receipt. 17 If the
petitioner does not return the petition in a timely manner or with the requisite corrections,
the court will dismiss the post-conviction petition with prejudice. 18

9

ARIZ. R. CRIM. P. 32.5. The defendant must certify to this fact. Id. See also ARIZ. REV. STAT. § 134235 (2005).
10
“Newly discovered material facts exist if: (1) the facts were discovered after the trial; (2) the defendant
exercised due diligence in securing the newly discovered material facts; and (3) the newly discovered
material facts are not merely cumulative or used for impeachment, unless the impeachment evidence
substantially undermines testimony which was of critical significance at trial such that the evidence
probably would have changed the verdict or sentence.” ARIZ. R. CRIM. P. 32.1(e); see also ARIZ. REV.
STAT. § 13-4231(5) (2005).
11
ARIZ. R. CRIM. P. 32.1; see also ARIZ. REV. STAT. § 13-4231 (2005).
12
ARIZ. R. CRIM. P. 32.5; ARIZ. REV. STAT. § 13-4235 (2005).
13
ARIZ. R. CRIM. P. 32.5; ARIZ. REV. STAT. § 13-4235 (2005).
14
ARIZ. R. CRIM. P. 32.5. The response cannot be more than twenty-five pages, and any reply cannot be
more than ten pages. Id.
15
Id. The response cannot be more than forty pages, and any reply cannot be more than twenty pages.
Id.
16
ARIZ. R. CRIM. P. 32.5; ARIZ. REV. STAT. § 13-4235 (2005).
17
Id.; ARIZ. REV. STAT. § 13-4235 (2005).
18
Id.

172

The State, in turn, must file a response within forty-five days from the filing of the
petition. 19 The State may be granted a thirty-day extension on a showing of “good
cause” and additional time on a showing of “extraordinary circumstances.” 20 The
petitioner has fifteen days from the receipt of the State’s response to file a reply or the
trial court may authorize further time if “extraordinary circumstances” exist. 21
3. Summary Disposition of a Petition and the Post-Conviction Evidentiary
Hearing
The court must review the petition, response, reply, files, and records and identify all
procedurally defaulted claims within twenty days after the State’s filing deadline has
passed. 22 The court will summarily dispose of the petition if, after noting all precluded
claims, the court determines that no remaining claims present material issues of law or
fact entitling the petitioner to relief. 23 If the court finds that material issues of law or fact
exist, the court will hold an evidentiary hearing within thirty days of this initial review. 24
If an evidentiary hearing is held to resolve disputed issues of material fact, 25 the
petitioner is entitled to be present at the hearing and to subpoena witnesses, 26 and while
the Rules of Evidence govern the proceedings, the petitioner may be compelled to
testify. 27 The court also has the discretion to conduct the evidentiary hearing at the place
of the petitioner’s confinement, if space is available and proper notice is provided to the
facility. 28
During the evidentiary hearing, the petitioner has the burden of proving by a
preponderance of the evidence the allegations of fact contained in his/her petition. 29
When the petitioner proves that a constitutional defect exists, the burden then shifts to the
State to demonstrate that the defect was harmless beyond a reasonable doubt. 30
4. Decisions on Petitions for Post-Conviction Relief
The court must issue a ruling within ten days of the evidentiary hearing, unless
“extraordinary circumstances where the volume of the evidence or the complexity of the
issues” mandate an extension of time. 31 If the court finds in the petitioner’s favor, it must
19

ARIZ. R. CRIM. P. 32.6(a); ARIZ. REV. STAT. § 13-4236(A) (2005).
ARIZ. R. CRIM. P. 32.6(a); ARIZ. REV. STAT. § 13-4236(A) (2005).
21
ARIZ. R. CRIM. P. 32.6(b); ARIZ. REV. STAT. § 13-4236(B) (2005).
22
ARIZ. R. CRIM. P. 32.6(c); ARIZ. REV. STAT. § 13-4236(C) (2005).
23
ARIZ. R. CRIM. P. 32.6(c); ARIZ. REV. STAT. § 13-4236(C) (2005).
24
ARIZ. R. CRIM. P. 32.6(c); ARIZ. REV. STAT. § 13-4238(B) (2005). When a hearing is ordered, the
State, if requested, must notify the victims of the hearing. ARIZ. R. CRIM. P. 32.6(c); ARIZ. REV. STAT. §
13-4238(B) (2005).
25
ARIZ. R. CRIM. P. 32.8(a); ARIZ. REV. STAT. § 13-4238(A) (2005).
26
ARIZ. R. CRIM. P. 32.8(a); ARIZ. REV. STAT. § 13-4238(A) (2005).
27
ARIZ. R. CRIM. P. 32.8(b).
28
ARIZ. R. CRIM. P. 32.8(a); ARIZ. REV. STAT. § 13-4238(A) (2005). Notice must be provided at least
fifteen days prior to the evidentiary hearing to the officer in charge of the confinement facility. ARIZ. R.
CRIM. P. 32.8(a); ARIZ. REV. STAT. § 13-4238(A) (2005).
29
ARIZ. R. CRIM. P. 32.8(c); ARIZ. REV. STAT. § 13-4238(C).
30
ARIZ. R. CRIM. P. 32.8(c); ARIZ. REV. STAT. § 13-4238(C).
31
ARIZ. R. CRIM. P. 32.8(d).
20

173

enter an order “with respect to the conviction, sentence or detention, any further
proceedings, including a new trial and conditions of release, and other matters that may
be necessary and proper.”32 In issuing the order, the court must make specific findings of
fact and expressly state its conclusions of law. 33
5. Motions for Rehearing
If the petitioner or the State believes that the court erred in making its decision, either
party may move for a rehearing within fifteen days of the court’s ruling. 34 The motion
for rehearing must detail the grounds on which the petitioning party believes the court
erred. 35 The opposing party will not file a response to the motion for rehearing unless the
court requests that one be filed, 36 but the court will not grant a motion for rehearing if
such a response has not been requested and filed. 37 If a response is filed, the petitioner
has ten days from the date the response is served to file a reply. 38 If the court grants the
motion for rehearing, the court may amend its previous ruling without a hearing, or hold
a new hearing and amend or reaffirm its previous ruling. 39 When the court amends its
ruling, it must provide its rationale. 40 The filing of a motion for rehearing does not
restrict the issues that may be presented in a petition or cross-petition for review. 41
6. Appealing Decisions on Post-Conviction Petitions
Either party may appeal the trial court’s decision to grant or deny post-conviction relief to
the Arizona Supreme Court within thirty days. 42 The other party, after having been
served with the petition for review, may opt to file a cross-petition for review within
fifteen days. 43 The petitioner and, if a cross-petition is filed, the cross-petitioner must
also file a notice of the filing with the trial court within three days of filing. 44 Any
motion for an extension of time to file the petition or cross-petition for review must be
made and decided by the trial court. 45
The petition and the cross-petition, if one is filed, must include a discussion of the trial
court’s ruling, the issues that the petitioner wishes to present for review, the facts that are

32

ARIZ. R. CRIM. P. 32.8(d); ARIZ. REV. STAT. § 13-4238(D) (2005).
ARIZ. R. CRIM. P. 32.8(d); ARIZ. REV. STAT. § 13-4238(D) (2005).
34
ARIZ. R. CRIM. P. 32.9(a); ARIZ. REV. STAT. § 13-4239(A) (2005).
35
ARIZ. R. CRIM. P. 32.9(a); ARIZ. REV. STAT. § 13-4239(A) (2005).
36
ARIZ. R. CRIM. P. 32.9(a).
37
Id.
38
ARIZ. R. CRIM. P. 32.9(a); ARIZ. REV. STAT. § 13-4239(A) (2005).
39
ARIZ. R. CRIM. P. 32.9(b); ARIZ. REV. STAT. § 13-4239(B) (2005).
40
ARIZ. R. CRIM. P. 32.9(b); ARIZ. REV. STAT. § 13-4239(B) (2005).
41
ARIZ. R. CRIM. P. 32.9(c)(1); ARIZ. REV. STAT. § 13-4239(C) (2005).
42
ARIZ. R. CRIM. P. 32.9(c). Either party may also appeal within thirty days of the court’s final decision
on a motion for rehearing. Id. See also ARIZ. REV. STAT. §§ 12-120.21(A)(1), 13-4031 (2005) (providing
only the Arizona Supreme Court with jurisdiction to hear appeals in cases where a death sentence has been
imposed).
43
ARIZ. R. CRIM. P. 32.9(c); ARIZ. REV. STAT. § 13-4239(C) (2005).
44
ARIZ. R. CRIM. P. 32.9(c).
45
Id. All other motions, including the petition for review, cross-petition, and responsive pleadings, must
be filed in the court in which the petition is to be filed. Id.
33

174

material to those issues, and the reasons why the petition should be granted. 46 Failure to
raise any issue that could have been raised in the petition or cross-petition constitutes
waiver of that issue on appellate review. 47 Responses to the petition and cross-petition
may be filed within thirty days from the date the petition or cross-petition is served. 48
The Arizona Supreme Court is under no obligation to hear the appeal. 49 If the Court
grants review, it may order oral arguments and grant any relief it “deems necessary and
proper.” 50 If the Arizona Supreme Court declines to hear the appeal or affirms the lower
court’s decision, however, the petitioner may file a request for certiorari with the U.S.
Supreme Court. If the U.S. Supreme Court declines to hear the appeal or affirms the
lower court’s decision, the collateral appeal is complete.
A warrant of execution will not be issued until the conclusion of a petitioner’s first postconviction proceeding. 51
B. Procedural Restrictions on Petitions for Post-Conviction Relief
1. Rule 32.2 Procedural Bars and Rule 32.1 Exceptions
In order to prevent “piecemeal litigation” and encourage “judicial efficiency,” Rule 32.2
of the Arizona Rules of Criminal Procedure “essentially requires a defendant to raise all
known claims for [post-conviction] relief in a single petition to the trial court.” 52 Under
Rule 32.2(a), a petitioner is precluded from relief in state post-conviction proceedings on
claims that were:
(1)
(2)
(3)

Raisable on direct appeal or on post-trial motion;
Finally adjudicated on the merits on appeal or in any previous collateral
proceeding; 53
[W]aived at trial, on appeal, or in any previous collateral proceeding. 54

Prior to 1992, an issue was precluded only when the petitioner failed to “knowingly,
voluntarily and intelligently” raise an issue. 55 While the “knowingly, voluntarily and
intelligently” standard still attaches to claims of “sufficient constitutional magnitude,”
courts have held that other errors are waived if they were not raised at trial, on appeal, or
in a prior collateral proceeding, even if those waivers were not made “knowingly,
voluntarily, and intelligently.” 56 “The question [as to] whether an asserted ground is of
46

ARIZ. R. CRIM. P. 32.9(c)(1)(i)-(iv).
ARIZ. R. CRIM. P. 32.9(c)(1); ARIZ. REV. STAT. § 13-4239(C) (2005).
48
ARIZ. R. CRIM. P. 32.9(c)(2).
49
Id.
50
Id.
51
ARIZ. REV. STAT. § 13-706(A); Krone v. Hatham, 890 P.2d 1149, 1150 (Ariz. 1995) (en banc).
52
State v. Rosales, 66 P.3d 1263, 1267-68 (Ariz. Ct. App. 2003).
53
See State v. Wallace, 773 P.2d 983, 985 (Ariz. 1989) (en banc) (rejecting claims that the petitioner’s
death sentences must be vacated because a “defendant cannot utilize post-conviction relief proceedings in
order to attack matters finally adjudicated on their merits on direct appeal”).
54
ARIZ. R. CRIM. P. 32.2(a); ARIZ. REV. STAT. § 13-4232(A) (2005).
55
ARIZ. R. CRIM. P. 32.2 cmt.
56
ARIZ. R. CRIM. P. 32.2 cmt.; Stewart v. Smith, 46 P.3d 1067, 1070-71 (Ariz. 2002) (en banc).
47

175

‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent
waiver. . . does not depend upon the merits of the particular ground,” but “merely upon
the particular right alleged to have been violated.” 57 The Arizona Supreme Court has
recognized a defendant’s right to counsel and a defendant’s right to a jury trial to be of
“sufficient constitutional magnitude” to mandate a knowing, voluntary, and intelligent
waiver. 58
Although the State generally must plead and prove by a preponderance of the evidence
any grounds for preclusion, the trial court, on its own motion, may hold a claim to be
precluded. 59 The court may not preclude a claim in any event, however, when the
petition rests on at least one of the following grounds delineated in Rule 32.1:
(1)
(2)
(3)

(4)

(5)

The person is being held in custody after the sentence imposed has
expired;
Newly discovered material facts probably exist and such facts probably
would have changed the verdict or sentence; 60
The defendant’s failure to file a notice of post-conviction relief of-right or
notice of appeal within the prescribed time was without fault on the
defendant’s part;
There has been a significant change in the law that if determined to apply
to defendant’s case would probably overturn the defendant’s conviction or
sentence;
The defendant demonstrates by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found the defendant guilty of the
underlying offense beyond a reasonable doubt, or that the court would not
have imposed the death penalty. 61

2. Successive and Untimely Petitions
Generally, a petitioner must raise all possible claims for post-conviction relief in his/her
first petition and will not be granted relief unless the petition is timely filed. Successive
or untimely petitions may be permitted, however, if the petition raises any of the five
Rule 32.1(d) through (h) exceptions delineated immediately above. 62 Whenever claims
implicating Rules 32.1(d) through 32.1(h) are raised in a successive or untimely postconviction petition, the notice of post-conviction relief must “set forth the substance of
the specific exception and the reasons for not raising the claim in the previous petition or
in a timely manner.” 63 If the exception and reasons specified by the petitioner fail to
substantiate the claims, the court must dismiss the petition. 64 A death-row inmate who
57

ARIZ. R. CRIM. P. 32.2 cmt.; Stewart, 46 P.3d at 1070-71.
See Stewart, 46 P.3d at 1070.
59
ARIZ. R. CRIM. P. 32.2(c); ARIZ. REV. STAT. § 13-4232(C) (2005).
60
See supra note 10.
61
ARIZ. R. CRIM. P. 32.1; see also ARIZ. REV. STAT. §§ 13-4232(B), 13-4231(4)-(7) (2005).
62
ARIZ. R. CRIM. P. 32.2(b). After filing a notice for post-conviction relief, the petitioner has thirty days
to file a successive petition. ARIZ. R. CRIM. P. 32.4(c).
63
ARIZ. R. CRIM. P. 32.2(b).
64
Id.
58

176

files a successive post-conviction petition also may seek a stay of his/her execution in the
Arizona Supreme Court, if needed. 65
Furthermore, when a death-row inmate files a petition under Rule 32.1(f) alleging only
that his/her failure to appeal the court’s decision within the prescribed time was without
fault on his/her part, s/he does not waive any potential substantive claims for postconviction relief in a subsequent petition. 66
C. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel must be raised in a Rule 32 post-conviction
proceeding. 67 If a petitioner raised or could have raised claims of ineffective assistance
of counsel in an earlier post-conviction petition, any ensuing claims of ineffective
assistance of counsel will be considered waived and thereby precluded. 68 Because a
petitioner has no constitutional right to counsel during post-conviction proceedings, a
petitioner in a capital case may not allege a claim based on counsel’s performance during
the post-conviction proceedings. 69
In order to overturn a conviction and/or sentence on the basis of ineffective assistance of
counsel, the petitioner must show (1) that counsel’s performance was deficient, and (2)
that the deficient performance caused prejudice to the petitioner. 70 While counsel’s
performance may fall below “the range of competence demanded of attorneys in criminal
cases,” reversal is warranted if “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 71
D. Retroactivity of New Constitutional Rules
In determining whether a new constitutional rule may be applied retroactively, most
Arizona courts have adopted the three-pronged analysis articulated by the U.S. Supreme
Court in Teague v. Lane. 72 Under Teague, the court first must determine whether a
petitioner’s case has become “final.” 73 A case is final when “a judgment of conviction
65

ARIZ. R. CRIM. P. 32.4(f).
ARIZ. R. CRIM. P. 32.1(f); State v. Rosales, 66 P.3d 1263, 1266 (Ariz. Ct. App. 2003).
67
State v. Torres, 93 P.3d 1056, 1060-61 (Ariz. 2004) (en banc) (noting that claims of ineffective
assistance of counsel must be raised in a Rule 32 proceeding); State v. Spreitz, 39 P.3d 525, 527 (Ariz.
2002) (en banc) (“Ineffective assistance of counsel claims are to be brought in Rule 32 proceedings.”). If,
however, a petitioner has raised or raises the claim on direct appeal, the court simply will not address the
issue, and the petitioner will not be precluded from re-raising the claim in his/her petition for postconviction relief. Spreitz, 39 P.3d at 526.
68
Spreitz, 39 P.3d at 526. The claim will not be precluded if it falls within any of the exceptions noted in
Rules 32.1(d) through 32.1(h). See supra note 61 and accompanying text.
69
State v. Mata, 916 P.2d 1035, 1049 (Ariz. 1996) (en banc); State v. Krum, 903 P.2d 596, 599-600
(Ariz. 1995). The Arizona Supreme Court has noted that, as a practical matter, such a right “would be the
likelihood of an infinite continuum of litigation.” Mata, 916 P.2d at 1049.
70
State v. Vickers, 885 P.2d 1086, 1090-92 (Ariz. 1994) (en banc); Strickland v. Washington, 466 U.S.
668, 687-88 (1984).
71
Vickers, 885 P.2d at 1090-92. “Reasonable probability” is defined as less than “more likely than not,”
but more than “a mere possibility.” Id.
72
State v. Towery, 64 P.3d 828, 831 (Ariz. 2003) (en banc); Teague v. Lane, 489 U.S. 288 (1987).
73
Towery, 64 P.3d at 831.
66

177

has been rendered, the availability of appeal exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari finally denied.” 74 In nearly all instances,
except where a petitioner files for post-conviction relief before the conclusion of his/her
direct appeal, a petitioner’s case has become final if s/he is pursuing post-conviction
relief. 75
Second, the court must determine whether the new constitutional rule is substantive or
procedural in nature. 76 Once a petitioner’s case is final, s/he may only avail him/herself
of new substantive rules. 77 For a new procedural rule to apply retroactively in a final
case, the rule must either (1) “place[ ] certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to proscribe,” or (2) be “a
watershed rule of criminal procedure that is ‘implicit in the concept of ordered
liberty.’” 78
Alternatively, a limited number of Arizona courts have adopted the analysis outlined in
Allen v. Hardy 79 to determine whether a new rule applies retroactively.80 Under Allen,
the courts must consider three factors: (1) the purposes of the new rule, 81 (2) the degree
to which law enforcement authorities relied on the old rule, 82 and (3) the effect of its
retroactive application on the administration of justice. 83

74

Id. at 831-32 (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).
Id. at 831.
76
Id.
77
Id.
78
Id. at 833; Teague v. Lane, 489 U.S. 288, 307, 311 (1987). A watershed rule must “seriously diminish
the likelihood of obtaining an accurate conviction” and “alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding.” Towery, 64 P.3d at 833; Tyler v. Cain, 533 U.S. 656,
665 (2001); Teague, 489 U.S. at 307, 313.
79
Allen v. Hardy, 478 U.S. 256 (1986).
80
Towery, 64 P.3d at 835; Allen v. Hardy, 478 U.S. 255 (1986).
81
See Allen, 478 U.S. at 259 (“Retroactive application is ‘appropriate where a new constitutional
principle is designed to enhance the accuracy of a criminal trials.”).
82
See Towery, 64 P.3d at 836 (finding that the justice system’s good faith reliance on Walton v. Arizona,
which approved of Arizona’s capital sentencing scheme in which a judge, and not a jury, determined the
presence of aggravating factors weighed against the retroactive application of the new rule).
83
Id. at 835; Allen, 478 U.S. at 258.
75

178

II. ANALYSIS
A. Recommendation #1
All post-conviction proceedings at the trial court level should be conducted
in a manner designed to permit adequate development and judicial
consideration of all claims. Trial courts should not expedite post-conviction
proceedings unfairly; if necessary, courts should stay executions to permit
full and deliberate consideration of claims. Courts should exercise
independent judgment in deciding cases, making findings of fact and
conclusions of law only after fully and carefully considering the evidence
and the applicable law.

While the Arizona Rules of Criminal Procedure contain certain rules that seem to permit
the adequate development and judicial consideration of claims, there are several aspects
of Arizona law that may preclude this. Specifically, Arizona law (1) assigns the original
sentencing judge to preside over post-conviction proceedings, (2) allows for summary
dismissal of post-conviction claims without an evidentiary hearing, (3) imposes strict
timelines for filing a post-conviction petition, and (4) does not require an automatic stay
of execution upon the filing of a successive petition.
1. Assignment of Sentencing Judge to Post-Conviction Proceedings
Post-conviction cases in Arizona usually are assigned to the sentencing judge. 84
Although the sentencing judge may have knowledge of relevant facts and issues, a
potential for bias or the appearance of bias exists under this scenario, as post-conviction
proceedings stem from a decision in which the judge presided. A judge’s ability to
exercise independent judgment, therefore, may be compromised and a petitioner may not
be afforded adequate judicial consideration.
2. Filing Deadlines and Summary Disposition of Claims
The time restrictions promulgated in the Rules of Criminal Procedure potentially could
limit the adequate development of post-conviction claims. Prior to 1992, Arizona law
allowed any individual convicted of a criminal offense to file a petition for postconviction relief “at any time after entry of judgment and sentence,” and, upon the
petition being filed, allowed the trial court to stay the execution. 85 Because “unwarranted
delay” sometimes resulted from inmates waiting until the eve of their execution date to
file a petition, the Arizona Supreme Court amended the rule to provide for the automatic
filing of a notice of post-conviction relief. 86
Today, Arizona law mandates an automatic filing of a notice of post-conviction relief
once the Arizona Supreme Court affirms a petitioner’s conviction and death sentence on
direct appeal. 87 A death-row inmate then has 120 days to file a petition for post84

See ARIZ. R. CRIM. P. 32.4(e). The judge must transfer the case if it appears that his/her testimony may
be relevant. Id. See also ARIZ. REV. STAT. § 13-4234(I) (2005).
85
See Krone v. Hatham, 890 P.2d 1149, 1150 (Ariz. 1995) (en banc).
86
See id.
87
ARIZ. R. CRIM. P. 32.4(c)(2).

179

conviction relief. 88 Although the court may grant filing extensions, the time which
Arizona courts have allotted to file this petition may or may not be sufficient to ensure
the adequate development of all claims. It is thus unclear whether the time periods
allotted for filing post-conviction petitions provide adequate time for petitioners to fully
develop viable claims and file legally sufficient petitions.
Furthermore, the State’s procedures for summary disposal and its failure to require
evidentiary hearings inhibit full judicial consideration of all post-conviction claims.
Arizona trial courts have the authority to summarily dispose of a petition without
affording the petitioner an evidentiary hearing if, after noting all precluded claims, the
court determines that no remaining claim presents a material issue of law or fact entitling
the petitioner to relief. 89 The court is required to hold an evidentiary hearing only if there
is a claim presenting material issues of law or fact. 90 Indeed, Arizona case law indicates
that courts may summarily dispose of a post-conviction proceeding after a petitioner files
a notice of post-conviction relief, but before filing an actual petition, if a prior petition
had already been filed. 91 Given that the court may dispose of a petition without an
evidentiary hearing, it is imperative that petitioners be afforded sufficient time to fully
develop their claims in order to avoid their dismissal.
3. Stays of Execution
The Arizona Supreme Court may not issue an execution warrant until “a conviction and
sentence of death are affirmed and the first post-conviction proceedings have
concluded.” 92 However, if a petitioner files a successive post-conviction petition, s/he
must seek a stay of his/her execution in the Arizona Supreme Court, delineating any
claims for post-conviction relief in the stay application. 93 The Court has discretion to
either grant or deny the petitioner’s request, which, in the case of a denial, deprives the
petitioner of an “adequate opportunity to fully brief, argue and decide” his/her claims. 94
Given that an automatic stay is not mandated when a petitioner files a successive petition,
state post-conviction proceedings are likely to be unfairly expedited in these instances.
88

ARIZ. R. CRIM. P. 32.4(c)(1). See also State ex. rel. Napolitano v. Brown, 982 P.2d 815 (Ariz. 1999)
(en banc) (holding that under the separation of powers doctrine the Arizona code provision providing sixty
days to file a petition for post-conviction relief was unconstitutional because it conflicted with the court
rule providing 120 days).
89
ARIZ. R. CRIM. P. 32.6(c). Before summarily disposing of the petition, the trial court must review the
petition, response, reply, files and records and identify all procedurally defaulted claims. ARIZ. R. CRIM. P.
32.6(c).
90
ARIZ. R. CRIM. P. 32.8(a), 32.6(c). If a hearing is held, the State, if requested, must notify the victims.
Id.
91
See State v. Rosales, 66 P.3d 1263, 1264, 1267 (Ariz. Ct. App. 2003) (noting that a post-conviction
petition based on Rule 32.1(f) was filed after the petitioner’s initial notice in this non-death penalty case
and stating “if, as here, a trial court is presented with a successive notice of post-conviction relief in which
no claims under Rule 32.1(d) through (h) are articulated, supported by facts, and excused for being tardily
raised, the court could dismiss the entire proceeding on the notice, implicitly finding that all potential
claims are precluded by being waived in the previous proceedings.”).
92
ARIZ. REV. STAT. § 13-706(A) (2005); Krone v. Hatham, 890 P.2d 1149, 1150 (Ariz. 1995) (en banc).
93
ARIZ. R. CRIM. P. 32.4(f); ARIZ. REV. STAT. § 13-4234(J). This, of course, assumes the petitioner
wishes to seek a stay of his/her execution.
94
See State v. Mata, 916 P.2d 1035, 36-37 (Ariz. 1996) (en banc) (concluding that the petitioner is not
entitled to a stay of his execution upon the filing of his fourth petition for post-conviction relief because his
claim of ineffective assistance counsel was precluded).

180

Although the State of Arizona provides a post-conviction framework that inhibits the full
development and adequate judicial consideration of claims, we were unable to determine
to what extent, if any, the time-limits for filing post-conviction petitions hindered a
petitioner from fully developing any viable claims and filing a legally sufficient petition.
We also were unable to ascertain with certainty to what extent, if any, bias or the
appearance of bias permeated judges’ decisions, and if Arizona courts exercised their
discretion in a manner that permitted the full and deliberate consideration of all postconviction claims.
We are thus unable to conclude whether the State of Arizona complies with the
requirements of Recommendation #1.
B. Recommendation #2
The State should provide meaningful discovery in post-conviction
proceedings. Where courts have discretion to permit such discovery, the
discretion should be exercised to ensure full discovery.

Recommendation #3
Trial judges should provide sufficient time for discovery and should not
curtail discovery as a means of expediting the proceedings.

Rule 32 of the Arizona Rules of Criminal Procedure does not delineate a method by
which a petitioner may obtain discovery in post-conviction proceedings. Instead, under
Arizona law, the trial court has the inherent authority to grant a petitioner’s request for
discovery on a showing of “good cause.” 95 To show good cause, a petitioner must first
file a post-conviction petition, 96 which protects the State from “random discovery
requests” and facilitates consideration of a petitioner’s claims for post-conviction relief
and a petitioner’s request for discovery. 97 For the court to compel discovery, the
allegations set forth in the petition must state a colorable claim. 98 If the court compels
discovery and a petitioner thereby uncovers new or exculpatory evidence, s/he may
amend his/her petition to include any additional claims for post-conviction relief. 99
Given that the trial court has considerable discretion in determining the scope of
discovery, we were unable to ascertain whether Arizona courts exercise this discretion to
both provide full and meaningful discovery. Thus, we are unable to conclude whether the
State of Arizona complies with the requirements of Recommendations #2 and #3.

95
96
97
98
99

Canion v. Cole, 115 P.3d 1261, 1263 (Ariz. 2005) (en banc).
Id.
Id.
Id.
See ARIZ. R. CRIM. P. 32.6(d); Canion, 115 P.3d at 1264.

181

C. Recommendation #4
When deciding post-conviction claims on appeal, state appellate courts
should address explicitly the issues of fact and law raised by the claims and
should issue opinions that fully explain the bases for disposition of claims.

Although a petitioner may appeal the denial of his/her post-conviction petition, the
Arizona appellate courts are not obligated to hear the appeal. 100 When the court grants
review, the court may order that oral arguments be held and may grant any relief deemed
“necessary and proper.” 101 While the trial court must make specific findings of fact and
expressly state its conclusions of law in issuing its opinion, 102 the Arizona Supreme
Court has no similar obligation. 103 Indeed, in capital cases, the record of the postconviction proceedings—which consists of the notice of post-conviction relief, the
petition for post-conviction relief, response and reply (if any), all motions and responsive
pleadings, all minute entry orders issued, the transcript, and exhibits admitted—is only
transferred to the Arizona Supreme Court on request of the court. 104
Because the State of Arizona is neither required to address explicitly the issues of fact
and law raised by the claims nor required to issue opinions that fully explain the bases for
disposition of claims, the State fails to meet the requirements of Recommendation #4.
D. Recommendation #5
On the initial state post-conviction application, state post-conviction courts
should apply a “knowing, understanding and voluntary” standard for
waivers of claims of constitutional error not properly preserved at trial or
on appeal.

Recommendation #6
When deciding post-conviction claims on appeal, state appellate courts
should apply a “knowing, understanding, and voluntary” standard for
waivers of claims of constitutional error not raised properly at trial or on
appeal and should liberally apply a plain error rule with respect to errors of
state law in capital cases.

100

ARIZ. R. CRIM. P. 32.9(c)(2).
Id.
102
ARIZ. R. CRIM. P. 32.8(d).
103
See State v. Tankersley, 121 P.3d 829, 830-31 (Ariz. 2005) (remanding a portion of the case to the
Superior Court to make specific findings of fact); see also ARIZ. SUP. CT. R. 111(b) (detailing that an
opinion is mandated when a majority of the judges determine that the opinion: (1) “[e]stablishes, alters,
modifies or clarifies a rule of law, or; (2) “[c]alls attention to a rule of law which appears to have been
generally overlooked;” (3) [c]riticizes existing law;” (4) “[i]nvolves a legal or factual issue of unique
interest or substantial public importance;” or a judge, who has a concurring or dissenting expression,
wishes for the decision to be published). To the best of our knowledge, whether all post-conviction
decisions in capital cases raise “a legal or factual issue of unique interest or substantial public importance”
has not been addressed by the Arizona courts.
104
ARIZ. R. CRIM. P. 32.9(e).
101

182

Before 1992, a petitioner in Arizona must have failed to “knowingly, voluntarily and
intelligently” raise any issue before having the issue precluded. 105 Today, while the
“knowingly, voluntarily and intelligently” standard still attaches to claims of “sufficient
constitutional magnitude,” courts have held that other errors are waived if not properly
preserved at trial or on appeal.106 Whether an asserted ground is of “sufficient
constitutional magnitude” to require a knowing, voluntary and intelligent waiver hinges
upon the particular right alleged to have been violated. 107 The Arizona Supreme Court
has recognized a defendant’s right to counsel and a defendant’s right to a jury trial to be
of “sufficient constitutional magnitude.” 108
Furthermore, the State of Arizona does not apply a “plain error” review in postconviction proceedings.
Because the State of Arizona fails to apply the “plain error” standard in its review of
post-conviction proceedings, and applies the “knowingly, voluntarily, and intelligently”
standard only to certain constitutional errors not properly preserved at trial or raised on
appeal, the State fails to meet the requirements of Recommendations #5 and #6.
E. Recommendation #7
The states should establish post-conviction defense organizations, similar in
nature to the capital resources centers de-funded by Congress in 1996, to
represent capital defendants in state post-conviction, federal habeas corpus,
and clemency proceedings.

Recommendation #8
For state post-conviction proceedings, the state should appoint counsel
whose qualifications are consistent with American Bar Association
Guidelines on the Appointment and Performance of Defense Counsel in Death
Penalty Cases. The state should compensate appointed counsel adequately
and, as necessary, provide sufficient funds for investigators and experts.

In 2000, then-Attorney General Janet Napolitano created the Attorney General’s Capital
Case Commission (the Commission) to study the death penalty process in Arizona and
issue recommendations ensuring its fair and timely implementation. 109 The Commission
unanimously believed that the establishment of a statewide public defender office for
capital cases would be the “best and most effective” manner by which to improve capital
trials in Arizona. 110 In 2001 and 2002, the Commission endorsed legislation seeking the
creation of a statewide public defender office to represent indigent capital defendants in
105

ARIZ. R. CRIM. P. 32.2 cmt.
ARIZ. R. CRIM. P. 32.2 cmt.; Stewart v. Smith, 46 P.3d 1067, 1070-71 (Ariz. 2002) (en banc).
107
ARIZ. R. CRIM. P. 32.2 cmt.; Stewart, 46 P.3d at 1070-71.
108
See Stewart, 46 P.3d at 1070; see also State v. Espinosa, 29 P.3d 278, 280 (Ariz. Ct. App. 2001)
(holding in non-death penalty cases that the violation of a defendant’s due process rights where the
prosecutor improperly withdrew a plea offer was not of “sufficient constitutional magnitude” to require a
knowing, voluntary, and intelligent waiver).
109
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 1 (Dec. 2002).
110
Id. at 14.
106

183

post-conviction proceedings. 111 Both years, the bill failed in the legislature. 112 In June
2006, Arizona created the state capital post-conviction public defender office to
“[r]epresent any person who is not financially able to employ counsel in postconviction
relief proceedings in state court after a judgment of death has been rendered.” 113
The Arizona Supreme Court has held that death-row inmates in post-conviction
proceedings have no constitutional right to appointed counsel and that the appointment of
investigators and expert witnesses is permitted only when “reasonably necessary.” 114
Nonetheless, the Arizona Supreme Court 115 recognizes a “state-created right” to counsel
and appoints post-conviction counsel for indigent inmates on death row. 116
The Arizona legislature has mandated that post-conviction counsel meet the following
requirements:
(1)
(2)
(3)
(4)

(5)

Be a member of the State Bar of Arizona for at least five years
immediately prior to appointment;
Have three years of criminal litigation experience on the state level
immediately prior to the appointment;
Have demonstrated the necessary proficiency and commitment which
exemplify the quality of representation appropriate to capital cases;
Within the three years prior to his/her appointment, have served as lead
counsel in an appeal or post-conviction proceeding of a capital case and
experience as lead counsel in the appeal of three felony convictions and a
post-conviction proceeding resulting in an evidentiary hearing. Or, have
served as lead counsel in the appeal of at least six felony convictions (two
must be appeals from a first or second-degree murder conviction), and
lead counsel in two post-conviction proceedings cases resulting in
evidentiary hearings.
Within a year before the appointment, have completed at least six hours of
relevant training or educational programs in the area of capital defense,
and within a year prior to any subsequent appointment, at least twelve
hours of relevant training or educations programs in the area of criminal
defense. 117

111

Id.
Id.
113
ARIZ. REV. STAT. § 41-4251 (F)(1) (2006).
114
See State v. Mata, 916 P.2d 1035, 1052 (Ariz. 1996) (en banc) (recognizing a “state-created right” to
counsel during post-conviction proceedings); see also State v. Apelt, 861 P.2d 634, 650-51 (Ariz. 1993) (en
banc) (concluding that a defendant must show that the appointment of investigators and experts are
“reasonably necessary”); ARIZ. REV. STAT. § 13-4013(B) (2005) (calling for the appointment of
investigators and experts in cases where they are “reasonably necessary to adequately present a defense at
trial and at any subsequent proceeding”).
115
Either the Arizona Supreme Court or the trial court judge, who must be authorized by the Arizona
Supreme Court, may appoint counsel. ARIZ. R. CRIM. P. 32.4(c)(1).
116
ARIZ. R. CRIM. P. 32.4(b); Mata, 916 P.2d at 1052.
117
ARIZ. R. CRIM. P. 6.8(a), (c). Under exceptional circumstances, an attorney who does not meet these
requisites may be appointed. See ARIZ. R. CRIM. P. 6.8(d).
112

184

The Arizona Rules of Professional Conduct provide that the qualifications set forth above
apply to all attorneys, whether appointed or retained, who represent capital defendants. 118
In addition, Arizona law requires that appointed post-convcition counsel meet the
following qualifications:
(1)
(2)

(3)

Be a member in good standing of the state bar of Arizona for at least five
years immediately preceding the appointment;
Have practiced in the area of state criminal appeals or post-conviction
proceedings for at least three years immediately preceding the
appointment; and
Not previously have represented the capital defendant in the case either in
the trial court or in the direct appeal, unless the defendant and counsel
expressly request continued representation and waive all potential issues
that are foreclosed by continued representation. 119

Currently, under Arizona law, court appointed counsel is compensated at a rate “not to
exceed” $100 per hour. 120 If the number of hours worked by counsel exceeds 200,
counsel still is entitled to compensation, so long as s/he shows “good cause.” 121
While Arizona has promulgated qualifications for counsel, the State, among other things,
does not require the appointment of two attorneys in each post-conviction capital case
and has failed to provide counsel in a timely manner. The Commission, noting the acute
need for defense counsel in post-conviction proceedings, cited to at least six capital cases
in which inmates were awaiting the appointment of post-conviction counsel. 122 Indeed,
at the time of the Report’s publication, several death-row inmates had been awaiting the
appointment of counsel for nearly two years.123
While the State of Arizona recently established a statewide public defender office to
represent capital defendants in state post-conviction, there is no similar arrangement in
federal habeas corpus and clemency proceedings and the State has yet to meet the
requirements outlined by the American Bar Association. Consequently, the State of
Arizona is only in partial compliance with Recommendations #7 and #8.
F. Recommendation #9
State courts should give full retroactive effect to U.S. Supreme Court
decisions in all proceedings, including second and successive post-conviction
proceedings, and should consider in such proceedings the decisions of
federal appeals and district courts.

118
119
120
121
122
123

ARIZ. R. OF PROF’L CONDUCT 1.1 cmt.
ARIZ. REV. STAT. § 13-4041(C) (2005).
ARIZ. REV. STAT. § 13-4041(F) (2005).
ARIZ. REV. STAT. § 13-4041(G) (2005).
See supra note 109, at 21.
Id.

185

Arizona post-conviction courts give full retroactive effect to changes in the law
announced by the United States Supreme Court in limited circumstances. Although
Arizona courts recognize a petitioner’s right to avail himself of new substantive rules, the
court will usually accord retroactive effect to new procedural rules in post-conviction
proceedings when (1) the new rule places certain conduct beyond the scope of the law, or
(2) the new rule is a “watershed” rule of criminal procedure “implicit in the concept of
ordered liberty.” 124 Alternatively, a limited number of Arizona courts may allow the
retroactive application of a new rule after weighing three factors: (1) the purposes of the
new rule, (2) the degree to which law enforcement authorities relied on the old rule, and
(3) the effect of its retroactive application on the administration of justice. 125 All other
new rules of procedural law, including those announced by the United States Supreme
Court, apply retroactively only to cases still within the direct appeal pipeline. 126
Because the State of Arizona accords retroactive effect to changes in the law announced
by the United States Supreme Court under limited circumstances, the State of Arizona is
in partial compliance with Recommendation #9.
G. Recommendation #10
State courts should permit second and successive post-conviction
proceedings in capital cases where counsels’ omissions or intervening court
decisions resulted in possibly meritorious claims not previously being raised,
factually or legally developed, or accepted as legally valid.

Arizona law allows for successive post-conviction petitions when (1) a meritorious claim
is not raised or litigated as a result of counsel’s deficient performance or (2) an
intervening court decision that changed the law precluded a likely meritorious claim from
being raised in the petitioner’s earlier petition. 127 It appears, however, that in cases
where an intervening court decision extinguishes the bar against filing a successive
petition, the question of the law’s retroactivity, as discussed in Recommendation #9, must
be addressed before the court will consider the revived claim. Thus, even if a change in
the law allows a petitioner to overcome the statutory bar against successive postconviction petitions, the new law must be a rule of substantive criminal law or a new rule
of law necessary to ensure the fundamental fairness and accuracy of a criminal trial in
order to be applied to the petitioner’s case. 128
Although Arizona law allows for successive post-conviction petitions where counsels’
omissions or intervening court decisions resulted in possibly meritorious claims not
previously being raised, claims raised in a successive petition pursuant to an intervening
court decision may still be barred due to the application of stringent retroactivity rules.

124

State v. Towery, 64 P.3d 828, 833 (Ariz. 2003) (en banc); Teague v. Lane, 489 U.S. 288, 307, 311
(1987).
125
Towery, 64 P.3d at 835; Allen v. Hardy, 478 U.S. 255, 258 (1986).
126
See State v. Febles, 115 P.3d 629, 632 (Ariz. Ct. App. 2005).
127
See State v. Spreitz, 39 P.3d 525, 526 (Ariz. 2002) (en banc). Although claims not raised in the first
petition are generally considered precluded, the claims will not be precluded if they fall within any of the
exceptions noted in Rules 32.1(d) through 32.1(h). See supra note 61 and accompanying text.
128
See supra notes 72 through 83 and accompanying text.

186

The State of Arizona, therefore, only partially meets the requirements of
Recommendation #10.
H. Recommendation #11
In post-conviction proceedings, state courts should apply the harmless error
standard of Chapman v. California, 386 U.S. (1967), which requires the
prosecution to show that a constitutional error is harmless beyond a
reasonable doubt.

In Chapman v. California, the U.S. Supreme Court stated that “before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” 129 The burden to show that the error was
harmless falls on the “beneficiary of the error either to prove that there was no injury or
to suffer a reversal of his erroneously obtained judgment.” 130 Arizona courts follow this
pronouncement by requiring the same burden of proof for errors involving a petitioner’s
constitutional rights—the petitioner is entitled to post-conviction relief unless the State
proves that the error is harmless beyond a reasonable doubt.131
The State of Arizona, therefore, meets Recommendation #11.
I. Recommendation #12
During the course of a moratorium, a “blue ribbon commission” should
undertake a review of all cases in which individuals have been either
wrongfully convicted or wrongfully sentenced to death and should
recommend ways to prevent such wrongful results in the future.

Because Recommendation #12 is predicated on the implementation of a moratorium, it is
not applicable to the State of Arizona at this time.

129

Chapman v. California, 386 U.S. 18, 24 (1967).
Id.
131
ARIZ. R. CRIM. P. 32.8(c). See State v. Smith, 4 P.3d 388, 395 (Ariz. Ct. App. 1999); State v. Clark,
887 P.2d 572, 573 (Ariz. Ct. App. 1994).
130

187

188

CHAPTER NINE
CLEMENCY
INTRODUCTION TO THE ISSUE
Under a state’s constitution or clemency statute, the Governor or entity established to
handle clemency matters is empowered to pardon an individual’s criminal offense or
commute an individual’s death sentence. In death penalty cases, the clemency process
traditionally was intended to function as a final safeguard to evaluate (1) the fairness
and judiciousness of the penalty in the context of the circumstances of the crime and the
individual; and (2) whether a person should be put to death. This process can only
fulfill this critical function when the exercise of the clemency power is governed by
fundamental principles of justice, fairness, and mercy, and not by political
considerations.
The clemency process should provide a safeguard for claims that have not been
considered on the merits, including claims of innocence and claims of constitutional
deficiencies. Clemency also can be a way to review important sentencing issues that
were barred in state and federal courts. Because clemency is the final avenue of review
available to a death-row inmate, the state’s use of its clemency power is an important
measure of the fairness of the state’s justice system as a whole.
While elements of the clemency process, including criteria for filing and considering
petitions and inmates’ access to counsel, vary significantly among states, some minimal
procedural safeguards are constitutionally required. “Judicial intervention might, for
example, be warranted in the face of a scheme whereby a state official flipped a coin to
determine whether to grant clemency, or in a case where the State arbitrarily denied a
prisoner any access to its clemency process.” 1
Since 1972, when the United States Supreme Court temporarily barred the death
penalty as unconstitutional, clemency has been granted in substantially fewer death
penalty cases. From 1976, when the Court authorized states to reinstate capital
punishment, through April 2006, clemency has been granted on humanitarian grounds
229 times in 19 of the 38 death penalty states and the federal government. 2 One
hundred sixty-seven of these were granted by former Illinois Governor George Ryan in
2003 out of concern that the justice system in Illinois could not ensure that an innocent
person would not be executed.
Due to restrictions on the judicial review of meritorious claims, the need for a
meaningful clemency power is more important than ever. As a result of these
restrictions, clemency can be the State’s only opportunity to prevent miscarriages of
justice, even in cases involving actual innocence. A clemency decision maker may be
the only person or body that has the opportunity to evaluate all of the factors bearing on
the appropriateness of a death sentence without regard to constraints that may limit a
1

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring).
See
Death
Penalty
Information
Center,
Clemency,
http://www.deathpenaltyinfo.org/article.php?did=126&scid=13 (last visited on May 11, 2006).
2

189

at

court’s or jury’s decision making. Yet as the capital punishment process currently
functions, meaningful review frequently is not obtained and clemency too often has not
proven to be the critical final check against injustice in the criminal justice system.

190

I. FACTUAL DISCUSSION
A. Clemency Decision Makers
1. Authority of the Board of Executive Clemency and the Governor
While the Arizona Board of Executive Clemency (Board) holds the sole power to
recommend a grant of executive clemency, the power to make such a grant rests
exclusively with the Governor. 3 Without first receiving a recommendation by the
Board, the Governor is powerless to issue a reprieve, commutation or pardon of any
kind. 4 This statutory mandate that the Board first issue a recommendation is designed
to “prevent the [G]overnor from abusing the clemency power” vested in her/him by the
Arizona Constitution. 5
2. Appointment to and Structure of the Board
The Board consists of five members, including a Chair selected biennially by the
Governor. 6 Members of the Board are nominated by a selection committee appointed
by the Governor. 7 The selection committee, which is comprised of the Director of the
Department of Public Safety, the Director of the State Department of Corrections and
three others of the Governor’s choosing, compiles a list of three qualified nominees for
each vacancy on the Board. 8 Subject to the Senate’s consent, the Governor, in turn,
appoints a Board member from the list of candidates provided by the selection
committee. 9
Each Board member is appointed on the basis of his/her professional or educational
background and is to have a manifested interest in the State’s correctional program. 10
In order to ensure a “philosophically balanced” 11 Board, only two members from the
same profession are allowed to serve concurrently. 12 Members serve on a full-time
basis 13 for a term of five years, 14 which may be interrupted by the Governor “for
cause.” 15
3

ARIZ. REV. STAT. § 31-402(A), (C) (2005); ARIZ. CONST. art. V, § 5. See also McDonald v.
Thomas, 40 P.3d 819, 824 (Ariz. 2002) (en banc) (stating that “the [G]overnor retains ultimate authority
to grant or deny a recommended commutation”). There are two noted exceptions to the Governor’s
power– the Governor does not have the power to grant clemency to individuals convicted of treason and
in cases of impeachment. ARIZ. CONST. art. V, § 5. However, the Governor may suspend execution of a
sentence for treason until the case can be reported to the legislature at its next session. ARIZ. REV. STAT.
§ 31-444 (2005).
4
ARIZ. REV. STAT. § 31-402(A), (C) (2005).
5
McDonald, 40 P.3d at 825.
6
ARIZ. REV. STAT. § 31-401(A), (F) (2005). The Chairman, however, may be removed “at the
pleasure of the [G]overnor.” ARIZ. REV. STAT. § 31-401(F) (2005).
7
ARIZ. REV. STAT. § 31-401(A) (2005).
8
ARIZ. REV. STAT. §§ 31-401(A), 38-211(A) (2005).
9
ARIZ. REV. STAT. § 31-401(A) (2005).
10
ARIZ. REV. STAT. § 31-401(B) (2005).
11
See Questionnaire to the Governor’s Office (on file with author).
12
ARIZ. REV. STAT. § 31-401(B) (2005).
13
Id.

191

The Board also is required to employ an Executive Director, 16 who is charged with
“perform[ing] all administrative, operational and financial functions for the [B]oard.” 17
Within this sphere, the Executive Director is empowered to hire any needed case
analysts to assist the Board in gathering information on commutation applications, 18 as
well as any hearing officers to aid in the investigation of cases. 19
3. Duties of the Board and the Governor
The Governor must immediately transmit all clemency applications relating to felony
offenses committed prior to 1994 to the Chair of the Board upon receipt. 20 Upon
review, the Board must return the applications with its recommendations to the
Governor along with documentation that the victim or his/her family was notified of the
pending application. 21 With respect to felony offenses committed on or after January 1,
1994, the Board must receive and review petitions for pardons and commutations of
death sentences from any individuals, organizations, or the Arizona Department of
Corrections. 22
Additionally, Board members, once appointed, are obliged to partake in a four-week
course that is “relat[ed] to the duties and activities of the [B]oard” and is conducted by
the Board and the Attorney General’s Office. 23 The Board also must convene at least
once a month at the state prison. 24 While three members of the Board generally must
be present to establish a quorum and take action, the Chair may stipulate a quorum to
consist of the presence of two Board members. 25 When a quorum is present, the Board
is free to adopt and amend any rules deemed “proper for the conduct of its business,” so
long as those rules do not conflict with existing law. 26

14

ARIZ. REV. STAT. § 31-401(D) (2005).
ARIZ. REV. STAT. § 31-401(E) (2005).
16
ARIZ. REV. STAT. § 31-401(K) (2005).
17
ARIZ. REV. STAT. § 31-402(E) (2005).
18
ARIZ. REV. STAT. § 31-402(F) (2005).
19
ARIZ. REV. STAT. § 31-402(G) (2005).
20
ARIZ. REV. STAT. § 31-402(B) (2005).
21
Id.
22
ARIZ. REV. STAT. § 31-402(C)(4) (2005). See also ARIZ. REV. STAT. § 31-402(C)(3) (2005) (noting
that the Board, for those felony offenses committed on or after January 1, 1994, is also to “receive
petitions from individuals for whom the court has entered a special order allowing the person to petition
the [B]oard pursuant to § 13-603, subsection L”).
23
ARIZ. REV. STAT. § 31-401(C) (2005).
24
ARIZ. REV. STAT. § 31-401(H) (2005).
25
ARIZ. REV. STAT. § 31-401(I) (2005). When two members constitute a quorum and fail to agree on
the action under consideration, the Chairman will cast the deciding vote. However, if the Chairman is
one of the two members, no action can be taken until a quorum consisting of at least three members is
established. ARIZ. REV. STAT. § 31-401(J) (2005).
26
ARIZ. REV. STAT. § 31-401(G) (2005).
15

192

B. Clemency Petitions
Under Arizona law, a clemency hearing is not a matter of right, but “a matter of
executive grace.” 27 Consequently, the due process afforded by the Constitution in such
instances is “quite limited;” 28 petitioners, for instance, are not entitled to counsel.29
They may, however, obtain counsel on their own accord to represent them through the
process. 30
1. Pardons
Except where proscribed by law, any individual convicted of a felony offense in
Arizona may apply for a pardon, so long as the conviction still stands. 31 Individuals
applying for a pardon are required to complete and submit a pardon application to the
Board. 32 In doing so, Arizona law mandates that an applicant serve a written and
signed notice of his/her intention to apply for a pardon on the county attorney where the
applicant was convicted ten days before the Board “acts upon” a pardon application and
that the applicant provide proof of service to the Board. 33 “Unless dispensed with by
the [G]overnor,” a copy of the notice also is to be published for thirty consecutive days
in a newspaper situated in the county in which the applicant was convicted. 34 These
procedural requirements, however, are waived when the convicted individual is in
“imminent danger.” 35
Once the Department of Corrections reviews the application and finds the inmate
“eligible” for a pardon, 36 the Board may require the applicant to submit further
information. 37
2. Commutations of Death Sentences
To apply for a commutation of a death sentence, the applicant generally completes a
Commutation of Sentence Application as adopted by the Board. 38 In the application,
inmates are to detail (1) their institutional record, (2) any positive accomplishments
within prison, (3) their reasoning for the commutation, (4) their involvement in the
27

Woratzeck v. Ariz. Bd. of Exec. Clemency, 117 F.3d 400, 404 (9th Cir. 1997).
Id.
29
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
30
Id.
31
ARIZ. ADMIN. CODE § R5-4-201(A) (2005).
32
ARIZ. ADMIN. CODE § R5-4-201(B), (C) (2005).
33
ARIZ. REV. STAT. § 31-442(A) (2005).
34
Id.
35
ARIZ. REV. STAT. § 31-442(B) (2005). “Imminent danger of death” is defined by the Board as
meaning “upon verification by the Arizona Department of Corrections Health Services, an applicant has
been examined by a medical doctor and that doctor has diagnosed the applicant as suffering from a
medical condition which, in the doctor’s professional medical opinion, will to a reasonable medical
certainty result in the applicant’s death within six (6) months.” Policy No. 100.01.A (Ariz. Bd. of Exec.
Clemency 2003).
36
ARIZ. ADMIN. CODE § R5-4-201(B), (C) (2005).
37
Id.
38
Policy No.400.13(A) (Ariz. Bd. of Exec. Clemency 2004).
28

193

crime, (5) their plans upon returning to society, and (6) any other additional information
they deem fit. 39
The Board normally only considers applicants who have served two years of their
sentence and are not within a year of their mandated release or their possible release via
parole. 40 Where the Board receives a warrant of execution issued by the Arizona
Supreme Court, as well as in several other limited cases, 41 the Board retains the power
to waive such procedural requirements, including the submission of the Board’s
adopted application. 42 In fact, when a warrant of execution is issued for a death-row
inmate, the Chair automatically will schedule a reprieve and commutation hearing. 43
3. Reprieves
Death-row inmates need not submit an application for a reprieve. 44 Under Arizona
policy, after the Arizona Supreme Court issues a warrant of execution, the Board
automatically arranges a reprieve and commutation hearing for the inmate. 45 While the
Board asks that individuals who “wish to . . . personally request a reprieve hearing”
complete the Commutation of Sentence Application, the individual need not do so, as
the Board suspends all “formalities” upon the issuance of an execution warrant. 46
Moreover, when an inmate fails to submit any documents or evidence in support of the
reprieve or commutation, the assigned hearing officer will draft a report for the Board,
detailing the case and including all court documents and transcripts. 47 Board members
may review the report before the hearing. 48
C. The Clemency Decision Making Process
1. Scope of Review and Consideration of Petitions for Pardons and
Commutations
39

See Commutation of Sentence Application, as adopted by the Bd. of Exec. Clemency (on file with
the author).
40
Policy No. 400.13(C) (Ariz. Bd. of Exec. Clemency 2004).
41
For example, in instances where an applicant is “not in imminent danger of death” and has only
completed a year of his/her sentence, the Board may commute the sentence if (1) the sentence is three
years or less and (2) the applicant’s earliest eligibility release date is greater than six months away.
Policy No. 400.13(C) (Ariz. Bd. of Exec. Clemency 2004). See also ARIZ. REV. STAT. §13-603(L)
(2005). If, at sentencing, the court finds that the legally mandated sentence is “clearly excessive,” the
individual can petition the Board within ninety days of his/her commitment to the Department of
Corrections for a commutation of that sentence.
42
Policy No. 400.13(E) (Ariz. Bd. of Exec. Clemency 2004).
43
Policy No. 400.08(A), (D) (Ariz. Bd. of Exec. Clemency 1998); see also Telephone Interview by
Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec. Clemency (June 7, 2005).
44
Policy No. 400.08(A) (Ariz. Bd. of Exec. Clemency 1998); see also Ariz. Op. Att’y Gen. No. I80224 (1980).
45
Policy No. 400.08(A), (D) (Ariz. Bd. of Exec. Clemency 1998); see also Interview by Tanya
Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec. Clemency (June 7, 2005).
46
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
47
Id.
48
Id.

194

When considering a petition for clemency, neither the Board nor the Governor is
required to conduct any specific type of review. 49 No restrictions exist, by statute,
regarding what the Board may consider in making its recommendation to the
Governor. 50 The Board therefore is free to consider anything, including their own
personal beliefs. 51 Indeed, according to the current Chair of the Board, Duane Belcher,
the Board will consider everything the applicant submits. 52 In deciding whether to
grant or deny clemency, the Governor, by law, need only be provided with the
clemency application and the Board’s recommendation. 53
2. Clemency Hearings on Petitions for Pardons, Commutations, and Reprieves
a. Pardons 54
In cases of pardon applications, once all procedural requirements are satisfied, the
Board will set a hearing date and notify the applicant in writing of its date and time. 55
If it so chooses, the Board may require the judge before whom the applicant was
convicted or the prosecuting attorney to provide a statement of proven facts from the
trial “without delay” and any other facts relating to the “propriety of granting or
refusing the pardon.” 56
At the hearing, 57 the Board will vote either (1) to deny the pardon request, or (2) to
recommend to the Governor that a pardon be granted. 58 While recognizing that
pardons are to be made in “extraordinary cases,” Arizona law provides no other
statutory guidance to the Board in making or denying a pardon recommendation. 59
When the Board votes to recommend a pardon, those members voting in favor must
provide the Governor with a recommendation letter outlining their rationale.60
Similarly, opposing members, if they wish, are free to send to the Governor a “letter of
dissent.” 61 Regardless of the Board’s decision, the applicant must be notified in writing
of the outcome within ten working days. 62
49

Id.; Questionnaire, see supra note 11.
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
51
Id.
52
Id.
53
Id.
54
A pardon is defined as “an action by the [G]overnor that absolves an applicant of the legal
consequences of the crime for which the applicant was convicted.” ARIZ. ADMIN. CODE § R5-4-101(5)
(2005).
55
ARIZ. ADMIN. CODE § R5-4-201(D) (2005).
56
ARIZ. REV. STAT. § 31-441 (2005).
57
All hearings are open to the public. ARIZ. DEP’T OF CORR. ORDER MANUAL, Order No. 202.02(1.1)
(effective April 16, 2001).
58
ARIZ. ADMIN. CODE § R5-4-201(E) (2005).
59
ARIZ. REV. STAT. § 31-402(C)(4) (2005) (stating that for persons who committed felony offenses on
or after January 1, 1994, the Board “shall receive petitions from individuals, organizations or the
department for review and commutation of sentences and pardoning of offenders in extraordinary cases
and may make recommendations to the [G]overnor”) (emphasis added).
60
ARIZ. ADMIN. CODE § R5-4-201(F) (2005).
61
Id.
62
ARIZ. ADMIN. CODE § R5-4-201(E) (2005).
50

195

b. Commutations of Sentences 63
After review by the Department of Corrections, only applicants considered “eligible” 64
will be afforded a public hearing by the Board on their request for a commutation. 65
For individuals who committed felony offenses on or after January 1, 1994, the Board
must provide notice of the hearing to the victim, county attorney, and presiding judge
and afford each the opportunity to speak. 66
Generally, commutation hearings are conducted in two parts: Phase I and Phase II. 67
During the Phase I hearing, the Board reviews the application, any letters, the
applicant’s files, and “all relevant information.” 68 Although the Phase I hearing is in
absentia, 69 anyone, including friends, family, victims and legal counsel, can submit
relevant written materials or testify orally before the Board. 70 At the end of the Phase I
hearing, the Board can find by a majority vote (1) that the application needs no further
consideration, or (2) that a Phase II hearing is warranted to further investigate the
matter. 71 If, however, an inmate is “the subject of a warrant of execution issued by the
Arizona Supreme Court,” a Phase I hearing is not obligatory. 72
The Phase II hearing consists of an interview of the applicant, a review of “all relevant
information,” together with a report prepared by Board staff, and testimony from
witnesses— be they family, friends, victims, legal counsel, or others. 73 Upon its
conclusion, the Board renders a “final decision” as to whether to recommend a
commutation to the Governor. 74

63

The United States Supreme Court has defined a commutation as a “substitution of a lesser type of
punishment for the punishment actually imposed at trial.” Schick v. Reed, 419 U.S. 256, 273 (1974).
64
See Policy No. 400.13(B)-(F) (Ariz. Bd. of Exec. Clemency 2004). Applicants considered “eligible”
are those who (1) served two years of their sentence and are not within a year of their parole eligibility or
mandatory release; (2) served one year of their sentence which is not to exceed three years, is not in
imminent danger of death, and is not within six months of their earliest possible release date, (3) obtained
a court order pursuant to sect. 13-603(L) of the A.R.S. (which means that at the time of the sentencing
the court found the legally mandated sentence to be clearly excessive) allowing the individual to petition
the Board within ninety days after commitment to the Dep’t of Corrections for a commutation. Such
“eligibility criteria” may be waived by the Board however if (1) the applicant is in imminent danger of
death, and the medical status has been verified by the Department of Corrections; (2) the Arizona
Supreme Court has issued a warrant of execution; or (3) the court has entered a special order pursuant to
sect. 13-603(L) of the A.R.S.
65
Policy No. 400.13(B) (Ariz. Bd. of Exec. Clemency 2004); Ariz. Dep’t of Corr. Order Manual,
Order No. 202.02(1.1) (effective April 16, 2001).
66
ARIZ. REV. STAT. § 31-402(C)(2) (2005). It is unclear from the law in which phase of the hearing
should such an opportunity be afforded.
67
Policy No. 400.13(F) (Ariz. Bd. of Exec. Clemency 2004).
68
Policy No. 400.13(F)(1) (Ariz. Bd. of Exec. Clemency 2004).
69
See Policy No. 100.01(A)(20) (Ariz. Bd. of Exec. Clemency 2003) (defining “in-absentia” as “a
hearing conducted by the Board where the inmate is not present”).
70
Policy No. 400.13(F)(1) (Ariz. Bd. of Exec. Clemency 2004).
71
Id.
72
Policy No. 400.13(F)(3) (Ariz. Bd. of Exec. Clemency 2004).
73
Policy No. 400.13(F)(2) (Ariz. Bd. of Exec. Clemency 2004).
74
Id.

196

The only statutory guidance in making a recommendation of commutation is provided
in section 31-402 of the Arizona Revised Statutes. 75 Here, the Board may recommend
a commutation to the Governor for individuals who committed felony offenses on or
after January 1, 1994, if “clear and convincing evidence” shows that “the sentence
imposed is clearly excessive given the nature of the offense and the record of the
offender” and that “a substantial probability” exists “that when released the offender
will conform [his/her] conduct to the requirements of the law.” 76 However, such a
standard is neither applicable nor used in death penalty cases. 77 In practice, when
dealing with death penalty cases, Chair Duane Belcher has stated that, for the Board,
the only question is: “Should this person be executed?” 78
As in pardon cases, if a majority of the Board votes in favor of a recommending a
commutation, a letter outlining the Board’s rationale must be sent to the Governor.79
Opposing Board members may also contribute letters of dissent. 80 All letters and any
materials considered by the Board during the Phase II hearing will be passed on to the
Governor by the Chair. 81
c. Reprieves 82
Upon the Chair’s receipt of a warrant of execution, a death-row inmate will receive a
reprieve hearing. 83 The Board provides written notification to the inmate of the
hearing’s time and location at least fifteen days before its date. 84 The Board also
notifies victims, officials, and, if necessary, consular officials of the hearing. 85 If a
death-row inmate opts not to attend, the reprieve hearing is conducted in his/her
absence. 86 Generally, the Chair meets with the inmate beforehand to ensure that s/he
comprehends the process and, where applicable, that s/he is sure of his/her decision not
to attend. 87
All reprieve hearings are held at the Rynning Unit in the Eyman Complex of the
Florence Prison and are open to the public. 88 Typically, the State first addresses the

75

Note that this section applies only to persons who committed felony offenses on or after January 1,
1994. ARIZ. REV. STAT. § 31-402(C)(2) (2005).
76
Id.
77
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
78
Id.
79
Policy No. 400.13(G) (Ariz. Bd. of Exec. Clemency 2004).
80
Id.
81
Policy No. 400.13(H) (Ariz. Bd. of Exec. Clemency 2004).
82
See Rodriguez v. Sims, 156 P. 94, 96 (Ariz. 1916) (noting that a reprieve “postpones the execution
of a judgment for a time, and does not and cannot defeat the ultimate execution of the judgment of the
court”).
83
Policy No. 400.08(A) (Ariz. Bd. of Exec. Clemency 1998).
84
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
85
Id.
86
Id.
87
Id.
88
Id.

197

Board, followed by the inmate and/or counsel, who may attempt to refute the State’s
case. 89 Any individuals present at the hearing also may address the Board. 90
Afterwards, Board members have an opportunity to speak before voting whether to
recommend a reprieve or commutation to the Governor. 91 At the end of the reprieve
hearing, the Board must act either (1) to recommend to the Governor a reprieve or a
commutation of the inmate’s death sentence, or (2) to not recommend a reprieve or
commutation of the sentence.92 The Chair must “immediately” call the Governor’s
Office with the decision and send a letter via fax or hand delivery with the Board’s
recommendation to the Governor’s Office. 93
D. Clemency Decisions
After the Board makes its recommendation, the power to grant or deny clemency lies
with the Governor. 94 In making this decision, the Governor has great discretion. In
fact, the Governor may grant commutations, pardons, and reprieves for any offense
other than impeachment and treason, upon any of the “conditions, restrictions and
limitations [s/]he deems proper.” 95 If the Governor fails to act within ninety days of
the Board’s recommendation, however, any unanimous recommendation for
commutation by the present and voting Board members becomes effective
automatically. 96
When the Governor grants a pardon, commutation, or reprieve or suspends execution of
a death sentence, s/he must publish the reason(s) for the grant within ten days. 97 A
copy of the Governor’s rationale must also be filed with the Secretary of State. 98
Furthermore, at the start of each regular session, the Governor must provide the
legislature with the details of each case in which clemency was granted, including the
prisoner’s name, the crime, the sentence and its date, the date of the grant, and the
Governor’s rationale for doing so. 99
If, however, the Governor denies the Board’s recommendation of a pardon, the
applicant will receive written notice from the Board at the time the decision is
known. 100 To re-apply for a pardon, the applicant must wait three years from the date

89

Id.
Id.
91
Id.
92
Policy No. 400.08(D) (Ariz. Bd. of Exec. Clemency 1998).
93
Id.
94
ARIZ. CONST. art. V, § 5; ARIZ. REV. STAT. § 31-402(A), (C) (2005).
95
ARIZ. REV. STAT. § 31-443 (2005) (emphasis added).
96
ARIZ. REV. STAT. § 31-402(D) (2005).
97
The publication must be in a newspaper of general circulation in the county of the grantee’s
conviction. ARIZ. REV. STAT. § 31-445 (2005).
98
Id.
99
ARIZ. REV. STAT. § 31-446 (2005).
100
ARIZ. ADMIN. CODE § R5-4-201(G) (2005).
90

198

the pardon is denied. 101 In cases of commutations, the applicant must wait until two
years have lapsed from the date the Board took final action on the application. 102
Finally, where the Governor denies the Board’s recommendation for a reprieve or one
is not recommended, the Board, nevertheless, must be “continuously available to
receive any last minute information” twenty-four hours before the scheduled execution
and must be ready to reconvene at least three hours before the schedule execution. 103
In such instance, only the inmate or the attorney of record may ask for the reprieve
hearing to be reopened. 104

101

Id.
Policy No. 400.13(I) (Ariz. Bd. of Exec. Clemency 2004). Note that a commutation may be denied
by the Board in either Phase I or Phase II.
103
Policy No. 400.08(E), (F) (Ariz. Bd. of Exec. Clemency 1998).
104
Policy No. 400.08(G) (Ariz. Bd. of Exec. Clemency 1998).
102

199

II. ANALYSIS
A. Recommendation #1
The clemency decision-making process should not assume that the courts
have reached the merits on all issues bearing on the death sentence in a
given case; decisions should be based upon an independent consideration of
facts.

Under Arizona law, neither the Board nor the Governor is required to conduct any
specific type of review when considering a petition for clemency. 105 Indeed, the
Governor’s discretion in granting or denying clemency is largely “unfettered.” 106
Similarly, Board members, in deciding whether to recommend a grant of clemency to
the Governor, have great leeway and may consider anything, even their own personal
beliefs. 107
Since it is unclear what the clemency decision making review in Arizona specifically
entails, we are unable to assess whether the State of Arizona is in compliance with this
recommendation.
B. Recommendation #2
The clemency decision-making process should take into account all factors
that might lead the decision-maker to conclude that death is not the
appropriate punishment.

This recommendation requires the Governor and the Board to consider “all factors”
which may lead them to conclude that a death sentence is not warranted. “All factors”
include, but are not limited to the following:
(1)

(2)
(3)
(4)

(5)

Constitutional claims that were barred in court proceedings due to
procedural default, non-retroactivity, abuse of writ, statutes of
limitations, or similar doctrines, or whose merits the federal courts did
not reach because they gave deference to possibly erroneous, but not
“unreasonable,” state court rulings;
Constitutional claims that were found to have merit but did not involve
errors that were deemed sufficiently prejudicial to warrant judicial relief;
Lingering doubts of guilt (as discussed in recommendation #4);
Facts that no fact-finder ever considered during judicial proceedings,
where such facts could have affected determinations of guilt or sentence
or the validity of constitutional claims;
Patterns of racial or geographic disparity in carrying out the death
penalty in the jurisdiction (as discussed in Recommendation #3);

105

Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005); Questionnaire, see supra note 11.
106
Wigglesworth v. Mauldin, 990 P.2d 26, 33 (Ariz. Ct. App. 1999).
107
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).

200

(6)
(7)

Inmates’ mental retardation, mental illness, and/or mental competency
(as discussed in Recommendation #4); and
Inmates’ age at the time of the offense (as discussed in Recommendation
#4). 108

According to the Chair of the Board, Duane Belcher, Board members consider any
information that is submitted to them and accord it proper weight in deliberation. 109 As
mentioned previously, the Governor’s discretion in granting or denying clemency is
“unfettered.” 110 Indeed, the governor may grant clemency upon any of the “conditions,
restrictions and limitations [s/]he deems proper.” 111 Although the current Governor,
Janet Napolitano, has not received any clemency petitions for a death sentence, her
counsel has stated that “all material information would be appropriately reviewed” in
such a case. 112 We were unable to assess what exactly lies within the scope of “all
material information,” however.
A review of Arizona’s past clemency decisions does not further illuminate the factors
considered by the Governor in determining whether death is an appropriate punishment.
Since the death penalty’s reinstatement in 1973, twenty-two inmates have been
executed. 113 All were afforded reprieve hearings, but only one, Walter LaGrand, a
German national, received a reprieve recommendation from the Board. 114 Edward
Levya, then Chair of the Board, said the Board was persuaded by the fact that
LaGrand’s case was to be presented to the International Court of Justice. 115 Governor
Hull, however, denied the Board’s recommendation to stay Hull’s execution sixty days,
commenting simply: “In the interest of justice and with the victims in mind, I have
decided to allow this execution to go forward as scheduled.” 116 Since no death-row
inmate has ever been granted clemency and since neither the Governor nor the Board is
required to explain any clemency denials, the factors considered by these decisionmakers cannot be readily ascertained.
In summary, it appears that, while not required to do so, the Board does in practice
consider the factors presented here, at least in some cases. We were unable to ascertain
if these factors are considered by the Governor as well however; and therefore, are
unable to ascertain whether the State of Arizona is in compliance with
Recommendation #2. To ensure that “all factors” suggested by the ABA are considered
when reviewing petitions for clemency, we recommend that a rule be adopted
108

AMERICAN BAR ASSOCIATION, DEATH WITHOUT JUSTICE: A GUIDE FOR EXAMINING THE
ADMINISTRATION OF THE DEATH PENALTY IN THE UNITED STATES (2002).
109
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
110
Wigglesworth, 990 P.2d at 33.
111
ARIZ. REV. STAT. § 31-443 (2005) (emphasis added).
112
Questionnaire, supra note 11.
113
Ariz.
Dep’t
of
Corr.,
Death
Penalty
History,
at
http://www.adcprisoninfo.az.gov/DeathRow/DeathPenaltyHistory.htm (last visited Oct. 13, 2005).
114
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
115
CNN.com, Arizona governor refuses deal on German death row inmate (Mar. 2, 1999), at
http://www.cnn.com/US/9903/02/arizona.execution.01/.
116
Id.

201

delineating the factors that the Board and the Governor must consider when reviewing
clemency petitions.
C. Recommendation #3
Clemency decision-makers should consider as factors in their deliberations
any patterns of racial or geographical disparity in carrying out the death
penalty in the jurisdiction, including the exclusion of racial minorities from
the jury panels that convicted and sentenced the death-row inmate.

Recommendation #4
Clemency decision-makers should consider as factors in their deliberations
the inmate’s mental retardation, mental illness, or mental competency, if
applicable, the inmate’s age at the time of the offense, and any evidence
relating to a lingering doubt about the inmate’s guilt.

Recommendation #5
Clemency decision-makers should consider as factors in their deliberations
an inmate’s possible rehabilitation or performance of significant positive
acts while on death row.

As previously discussed, the Board will take into consideration any and all submitted
materials in deciding whether to recommend a grant of clemency to the Governor. 117
According to Chair Duane Belcher, such factors include patterns of racial or geographic
disparity, the inmate’s mental state and competency, the inmate’s age at the time of the
offense, and any evidence relating to a lingering doubt about the inmate’s guilt. 118 The
Board also considers an inmate’s possible rehabilitation or his/her performance of
significant positive acts. For example, in the Board’s Commutation of Sentence
Application, inmates are asked to detail their “positive accomplishments” while
imprisoned, including any participation in educational, vocational, and therapeutic
programs, as well as to explain why they are entitled to a commutation of their
sentence. 119
Under Arizona law, the Governor must only be presented with the Board’s
recommendation and the clemency application before s/he decides to grant or deny
clemency to a death-row inmate. 120 In deciding, the Governor may consider anything
s/he “deems proper.” 121 Again, although Governor Napolitano has not been presented
with a clemency petition for a death-row inmate, her counsel has stated that in such a
scenario “all material information would be appropriately reviewed.” 122 It is unclear,
however, whether the factors highlighted in Recommendations #3 through #5 would be
117

Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
118
Id.
119
Commutation of Sentence Application, supra note 39.
120
Questionnaire, supra note 11.
121
ARIZ. REV. STAT. § 31-443 (2005).
122
Questionnaire, supra note 11.

202

deemed “material” by the Governor. Accordingly, we cannot assess whether the State
of Arizona is in compliance with this recommendation.
Furthermore, because clemency has never been granted to an Arizona death-row inmate
and a clemency denial does not require an explanation from the Board or the Governor,
we cannot deduce the extent, if any, to which these factors have been considered in the
past. 123
To ensure that the factors in Recommendations #3 through #5 are considered in the
clemency decision making process, we recommend that guidelines be created and
utilized delineating the factors that the Board and the Governor must consider when
reviewing a petition for clemency.
D. Recommendation #6
In clemency proceedings, death row inmates should be represented by
counsel and such counsel should have qualifications consistent with the
recommendations in the Defense Services Section.

The State of Arizona does not have any laws, rules, procedures, standards, or guidelines
requiring the appointment of counsel to inmates petitioning for clemency. Accordingly,
the State of Arizona fails to comply with the requirements of Recommendation #6.
E. Recommendation #7
Prior to clemency hearings, death-row inmates’ counsel should be entitled to
compensation and access to investigative and expert resources. Counsel also
should be provided sufficient time both to develop the basis for any factors
upon which clemency might be granted that previously were not developed
and to rebut any evidence that the State may present in opposing clemency.

The State of Arizona does not have any laws, rules, procedures, standards, or guidelines
entitling a death-row inmate’s counsel to compensation or access to investigative and
expert resources in preparation for clemency hearings, much less any laws entitling a
defendant to counsel. 124
A death-row inmate’s counsel does appear, however, to have sufficient time to develop
the basis for any factors, previously undeveloped, upon which clemency may be
granted, as Arizona law has no filing deadlines for clemency petitions or for the
submission of evidence. 125 In fact, the petitioner or his/her counsel even may submit
evidence beyond the date of the reprieve hearing. 126 For example, when a reprieve is
denied by the Governor or not recommended by the Board, the Board must be
“continuously available to receive any last minute information” for at least twenty-four

123

Id.
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
125
Id.
126
Id.
124

203

hours prior to the execution. 127 Requests to reopen the hearing also are allowed by the
inmate or his/her counsel. 128
It remains unclear, however, whether counsel has sufficient time to rebut opposing
evidence from the State. The State is not required to file any documents in opposition
to a clemency petition, but if the State does respond during a reprieve hearing, an
inmate’s counsel is afforded an opportunity to refute the State’s case at the hearing.129
An inmate’s counsel also may request to reopen the reprieve hearing, where a further
opportunity to refute the State’s case may be presented. 130
Additionally, although the first phase of a commutation hearing is conducted in
absentia, an inmate’s counsel still is afforded an opportunity to speak. 131 We were
unable to ascertain, however, if sufficient time is provided to counsel to rebut the State
in commutation and pardon hearings where a warrant of execution has not been issued.
We therefore cannot assess fully whether such opportunities are sufficient to rebut any
opposition from the State.
Accordingly, the State of Arizona is only in partial compliance with Recommendation
#7.
F. Recommendation #8
Clemency proceedings should be formally conducted in public and presided
over by the Governor or other officials involved in making the clemency
determination.

All pardon, commutation, and reprieve hearings presided over by the Board and held in
the Arizona Department of Corrections facilities are “considered open meetings.” 132
During this stage of the clemency proceedings, members of the media are permitted to
attend and bring audiotape recorders as well as video cameras. 133 In reprieve hearings,
anyone who desires to address the Board will be afforded the opportunity to do so. 134
Board members also may speak before voting upon a recommendation of reprieve, and
the Board’s decision to either recommend or not recommend clemency is made
publicly. 135
Once the Board makes its recommendation, the Governor grants or denies clemency in
a process that appears to be shielded from public scrutiny. The Governor is only
127

Policy No. 400.08(F) (Ariz. Bd. of Exec. Clemency 1998).
Policy No. 400.08(G) (Ariz. Bd. of Exec. Clemency 1998).
129
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
130
Policy No. 400.08(G) (Ariz. Bd. of Exec. Clemency 1998).
131
Policy No. 400.13(F)(1) (Ariz. Bd. of Exec. Clemency 2004).
132
ARIZ. DEP’T OF CORR. ORDER MANUAL, Order No. 202.02(1.1) (effective April 16, 2001); see
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
133
ARIZ. DEP’T OF CORR. ORDER MANUAl, Order No. 202.02(1.4.5), (1.4.6) (effective April 16, 2001).
134
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
135
Id.
128

204

required to explain his/her reasoning when s/he grants clemency and is under no similar
requirement when s/he denies a clemency petition. 136 Because the Governor’s
decision-making process remains opaque, particularly when rejecting clemency
applications, the State of Arizona is only in partial compliance with the requirements of
Recommendation #8.
G. Recommendation #9
If two or more individuals are responsible for clemency decisions or for
making recommendations to clemency decision-makers, their decisions or
recommendations should be made only after in-person meetings with
clemency petitioners.

The State of Arizona does not have any laws, rules, procedures, standards or guidelines
requiring that the entire Board or the Governor meet with the petitioning inmate. As
the ultimate decision-maker, the Governor generally is insulated from the inmate,
rendering it possible or even likely that s/he will make a clemency decision without
ever meeting the inmate.
Although not practice, such a scenario also may occur with the Board. In cases where a
warrant of execution has been issued, the Board will hold a reprieve hearing. 137 An
inmate has the option to attend and address the Board, but is not required to do so. 138
As a matter of course, however, Chair Belcher generally meets with the inmate before
the hearing to ensure s/he understands the process and, where applicable, to ensure s/he
understands his/her right to speak before the Board. 139
Where a warrant of execution has not yet been issued by the Arizona Supreme Court,
the Board is not mandated to meet with the inmate. Indeed, in a commutation hearing,
the Phase I hearing is conducted in the inmate’s absence, and only upon a Phase II
hearing (if the Board finds one warranted) does the inmate have a right to testify
personally before the Board. 140
Although the Governor’s Office is not mandated to meet in-person with a death row
inmate, the Board affords all death row inmates an opportunity to plead their case in
person at a reprieve hearing. As such, the State of Arizona is in partial compliance with
this recommendation.
H. Recommendation #10
Clemency decision-makers should be fully educated, and should encourage
education of the public, concerning the broad-based nature of clemency
powers and the limitations on the judicial system’s ability to grant relief
under circumstances that might warrant grants of clemency.
136

ARIZ. REV. STAT. §§ 31-445, 31-446 (2005).
Policy No. 400.08(A) (Ariz. Bd. of Exec. Clemency 1998).
138
Telephone Interview by Tanya Imming with Duane Belcher, Chairman of the Ariz. Bd. of Exec.
Clemency (June 7, 2005).
139
Id.
140
Policy No. 400.13(F)(1) (Ariz. Bd. of Exec. Clemency 2004).
137

205

Board members must be appointed “on the basis of broad professional or educational
qualifications and experience” and have a manifested interest in the State’s correctional
program. 141 Of the current Board members, all but one have a master’s degree. 142 In
addition, Arizona law mandates that Board members complete four weeks of training
pertaining “to the duties and activities of the Board.” 143 Although the exact scope and
content of the training is unknown, it must include, at minimum, a decision-making
workshop and a study of all the statutes affecting the Board. 144 While the course is
“designed and administered” by the Chair, it is “conducted” by the Board and the
Attorney General’s Office. 145
Significantly, the State of Arizona has no laws, rules, procedures, standards, or
guidelines requiring the Board or the Governor to encourage the education of the public
about the nature of clemency powers or on the limitations of the judicial system’s
ability to grant relief under circumstances that may warrant clemency.
Based on this information, the State of Arizona is only in partial compliance with
Recommendation #10.
I. Recommendation #11
To the maximum extent possible, clemency determinations should be
insulated from political considerations or impacts.

The ultimate decision to grant or deny clemency rests with the Governor. 146 To shield
the Governor from political pressures, the legislature has provided that a unanimous
Board recommendation to commute a sentence will take effect automatically should the
Governor not act within ninety days. 147
Nevertheless, in a sign that some elected officials are concerned about what is
perceived to be a politically-charged commutation process, 148 Arizona Senator Linda
Gray introduced a bill in January 2005 that would have transferred the exclusive power
to grant commutations from the Governor to the Board, upon voter approval of a

141

ARIZ. REV. STAT. § 31-401(B) (2005).
Arizona Board of Executive Clemency, Board Members, at http://azboec.gov (last visited Oct. 13,
2005).
143
ARIZ. REV. STAT. § 31-401(C) (2005).
144
Id.
145
Id.
146
ARIZ. REV. STAT. ANN. § 31-402(A), (C) (2005); ARIZ. CONST. art. v, § 5. See also McDonald v.
Thomas, 40 P.3d 819, 824 (Ariz. 2002) (en banc) (stating that “the [G]overnor retains ultimate authority
to grant or deny a recommended commutation”).
147
ARIZ. REV. STAT. § 31-402(D) (2005); see also Telephone Interview by Tanya Imming with Duane
Belcher, Chairman of the Ariz. Bd. of Exec. Clemency (June 7, 2005); Questionnaire to the Governor’s
Office (on file with author).
148
See Amanda J. Crawford & Ryan Konig, Clemency Voice Goes Unheeded, THE ARIZ. REPUBLIC,
May 22, 2005, at A1.
142

206

Constitutional amendment restricting the Governor’s clemency powers. 149 The bill
currently is pending in the Rules Committee. 150
Although appointed by the Governor via a selection committee, Board members must
be approved by the Senate, 151 which may also leave them vulnerable to political
considerations. Arizona law, however, allows removal of Board members by the
Governor only for cause, partially insulating the Board from political considerations. 152
Moreover, while Board hearings are open to the public, 153 Board members are not
required to explain any decisions in which they deny clemency. They only must
provide a rationale for their actions upon recommending a commutation or pardon and,
even then, the rationale need only be provided to the Governor. 154 This quasiconfidentiality which surrounds the Board’s decision-making process insulates
members from political considerations and, at the same time, allows the process to
maintain some transparency.
The State of Arizona has taken steps to ensure that clemency determinations are
insulated from political considerations or impacts and thus is in partial compliance, at
least, with Recommendation #11. We were unable to ascertain whether Arizona has
done so to the maximum extent possible, however.

149

S.B. 1242, 47th Leg., 1st Sess. (Ariz. 2005). Senator Gray introduced the bill after becoming
concerned that the Governor was failing to act on Board commutation recommendations, thereby keeping
some inmates in prisons longer than needed and, consequently, wasting taxpayer money. Crawford,
supra note 148.
150
S.B. 1242, supra note 149 (pending within the Rules Committee).
151
ARIZ. REV. STAT. § 31-401(A) (2005).
152
ARIZ. REV. STAT. § 31-401(E) (2005); see also Telephone Interview by Tanya Imming with Duane
Belcher, Chairman of the Ariz. Bd. of Exec. Clemency (June 7, 2005); Questionnaire, supra note 11.
153
ARIZ. DEP’T OF CORR. ORDER MANUAl, Order No. 202.02(1.1) (effective April 16, 2001).
154
See ARIZ. ADMIN. CODE § R5-4-201(F) (2005); Policy No. 400.13(G) (Ariz. Bd. of Exec. Clemency
2004).

207

208

CHAPTER TEN
CAPITAL JURY INSTRUCTIONS
INTRODUCTION TO THE ISSUE
In virtually all jurisdictions that authorize capital punishment, jurors in capital cases have
the "awesome responsibility" of deciding whether another person will live or die. 1
Jurors, prosecutors, defendants, and the general public rely upon state trial judges to
present fully and accurately, through jury instructions, the applicable law to be followed
in jurors’ decision making. Often, however, jury instructions are poorly written and
conveyed. As a result, instructions often serve only to confuse jurors, not to
communicate.
It is important that trial judges impress upon jurors the full extent of their responsibility
to decide whether the defendant will live or die or to make their advisory
recommendation on sentencing. Some trial courts, whether intentionally or not, give
instructions that may lead jurors to misunderstand their responsibility or to believe that
reviewing courts independently will determine the appropriate sentence. In some cases,
jurors conclude that their decisions are not vitally important in determining whether a
defendant will live or die.
It also is important that courts ensure that jurors do not act on the basis of serious
misimpressions, such as a belief that a sentence of “life without parole” does not
ensure that the offender will remain in prison for the rest of his/her life. Such jurors
may vote to impose a death sentence because they erroneously believe that otherwise, the
defendant may be released within a few years.
It is similarly vital that jurors understand the true meaning of mitigation and their ability
to bring mitigating factors to bear in their consideration of capital punishment.
Unfortunately, jurors often believe that mitigation is the same as aggravation, or that they
cannot consider evidence as mitigating unless it is proved beyond a reasonable doubt to
the satisfaction of every member of the jury.

1

Caldwell v. Mississippi, 472 U.S. 320, 341 (1985).

209

I. FACTUAL DISCUSSION
A. Voir Dire
All individuals charged with a capital felony possess the right to a trial by jury, 2 although
a defendant may waive that right with the consent of the prosecutor and court. 3 In
selecting a capital jury, the court may examine either a select group of potential jurors, 4
or, along with counsel, the entire prospective jury pool. 5 This process, which is known as
voir dire, allows the court to assess each prospective juror’s qualifications and fitness to
serve. 6 At its end, the State and defense will have selected twelve jurors to resolve a
capital defendant’s fate—life or death. 7
1. Structure and Scope of Voir Dire
Voir dire is intended to “unveil a juror’s prejudices so that the parties can exercise
intelligently their peremptory challenges and challenges for cause.” 8 The court has the
primary responsibility in conducting voir dire 9 and is responsible for identifying the
parties and their counsel, briefly outlining the nature of the case, explaining the purpose
of the examination, and asking questions that touch on the prospective jurors’
qualifications. 10
At the court’s discretion, the parties may present brief opening statements to the entire
jury panel. 11 The court then must conduct a “thorough oral examination” of the
prospective jurors. 12 Although its scope is limited to inquiries related to either party’s
exercise of a challenge for cause or peremptory challenge, 13 this questioning is intended
to “elicit more detailed and candid responses.” 14
If a prospective juror is reluctant to admit his/her opinion in open court or a juror’s
comments “concerning the case might color the entire jury’s perspective,” the court may

2

ARIZ. CONST. art. II, § 23; ARIZ. REV. STAT. § 13-703.01(S)(1) (2005) (defining the trier-of-fact to be a
jury or, if the defendant waives his/her right to a jury trial, the court).
3
ARIZ. REV. STAT. § 13-3983 (2005); ARIZ. R. CRIM. P. 18.1(b).
4
The group consists of thirty-two potential jurors (because twelve individuals comprise a jury and the
parties are allowed a total of twenty peremptory strikes, thirty-two potential jurors are selected), along with
however many alternates (if any) have been chosen. See ARIZ. R. CRIM. P. 18.5(b).
5
Id.
6
ARIZ. R. CRIM. P. 18.5(d).
7
ARIZ. CONST. art. II, § 23; ARIZ. REV. STAT. § 21-102(A) (2005). See also ARIZ. R. CRIM. P. 18.2,
18.5(h). The jury may also be comprised of an unknown number of alternatives (if any).
8
State v. Verive, 627 P.2d 721, 727 (Ariz. Ct. App. 1981).
9
ARIZ. R. CRIM. P. 18.5(a)-(e) cmt.
10
ARIZ. R. CRIM. P. 18.5(c).
11
Id.
12
ARIZ. R. CRIM. P. 18.5(d).
13
ARIZ. R. CRIM. P. 18.5(e).
14
State v. Blakley, 65 P.3d 77, 83 (Ariz. 2003).

210

privately examine the jurors. 15 In addition to the oral examination, the court may
approve the completion of written questionnaires by prospective jurors. 16
The prosecution and defense also may be allowed to examine individual jurors, but only
if good cause appears during the court’s examination. 17
a. Required and Proper Questioning During Voir Dire
Beyond the general requirement that the court “conduct a thorough oral examination of
prospective jurors,” 18 there are no specific questions that must be asked during voir dire
and “[t]he extent of voir dire examination is left to the sound discretion of the trial
court.” 19
While specific questions are not mandated, the court must examine potential jurors on a
subject if there is a “nexus between [a] prejudice feared and an issue in the case.” 20
When a juror’s response hints at a possible prejudice, the court is obligated to pose
further questions to allow the parties to determine if a challenge for cause should be
made. 21
As part of its examination, the court also should address prospective jurors’ opposition to
(Witherspoon questions) 22 and support of (reverse-Witherspoon questions) 23 the death
penalty. 24 The “trial judge must excuse any potential jurors who cannot provide
assurance that their views on the death penalty will not affect their ability to decide issues
of guilt.” 25
There is no right to use jury questionnaires during voir dire, although their use is
permitted at the court’s discretion. 26

15

ARIZ. R. CRIM. P. 18.5(a)-(e) cmt. The court may examine jurors privately only in “appropriate” cases.
Examples of “appropriate” cases include those that involve “unusually sensitive subjects or which are
surrounded by a great deal of publicity.”
16
ARIZ. R. CRIM. P. 18.5(d).
17
ARIZ. R. CRIM. P. 18.5(a)-(e) cmt. For example, the trial judge must “allow the parties some leeway in
exploring each panelist’s exposure to pretrial publicity.” State v. Blakely, 65 P.3d 77, 83 (Ariz. 2003).
18
ARIZ. R. CRIM. P. 18.5(d).
19
State v. Detrich, 932 P.2d 1328, 1336 (Ariz. 1997) (emphasis added).
20
State v. Chaney, 686 P.2d 1265, 1274 (Ariz. 1984).
21
Id.
22
See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding that “a sentence of death cannot be
carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death penalty or expressed conscientious or religious
scruples against its infliction”).
23
See Morgan v. Illinois, 504 U.S. 719, 731-34 (1992) (recognizing a right to dismiss jurors who would
always impose the death penalty on a defendant).
24
See State v. Moody, 94 P.3d 1119, 1144-45 (Ariz. 2004).
25
State v. Canez, 42 P.3d 564, 578 (Ariz. 2002) (quoting State v. Kayer, 984 P.2d 31, 40 (Ariz. 1999));
see also State v. Anderson, 4 P.3d 369, 374 (Ariz. 2000) (“Disqualification when a juror states his inability
to be impartial is not only permissible but imperative.”) (quoting State v. Wiley, 698 P.2d 1244, 1253
(Ariz. 1985), overruled on other grounds).
26
Moody, 94 P.3d at 1146.

211

b. Improper Questioning During Voir Dire
Voir dire is used to seek relevant information from and about jurors, but is not intended
to impart information or arguments to the jurors. 27 In other words, attorneys are not
allowed to “condition” jurors “by means of questions and argument which amount to
preliminary instructions on the law and facts of the case.” 28
2. Juror Selection
After the judge, State, and defense have examined the prospective jurors on voir dire, the
court will select the jury. 29
a. Challenges for Cause
A challenge for cause is “a request from a party to a judge that a certain prospective juror
not be allowed to be a member of the jury because of specified causes or reasons.” 30 A
party may raise a challenge for cause at any time during the proceedings, 31 and may
object to a juror serving if s/he:
(1)
(2)
(3)
(4)

(5)

(6)

(7)

(8)

Has been convicted of a felony;
Lacks any of the qualifications prescribed by law to render a person a
competent juror;
Is of such unsound mind or body as to render him[/her] incapable of
performing the duties of a juror;
Is related by consanguinity or affinity within the fourth degree to the
person alleged to be injured by the offense charged, or on whose
complaint the prosecution was instituted, or to the defendant;
Stands in the relationship of guardian and ward, attorney and client,
master and servant, or landlord and tenant, or is an employee of or
member of the family of the defendant, or of the person alleged to be
injured by the offense charged or on whose complaint the prosecution was
instituted;
Has been a party adverse to the defendant in a civil action, or has
complained against or been accused by him[/her] in a criminal
prosecution;
Has served on the grand jury which found the indictment, or on a
coroner’s jury which inquired into the death of a person whose death is the
subject of the indictment or information;
Has served on the trial jury which has tried another person for the offense
charged in the indictment or information;

27

ARIZ. R. CRIM. P. 18.5(c), 18.5(a)-(e) cmt.
ARIZ. R. CRIM. P. 18.5(a)-(e) cmt.
29
ARIZ. R. CRIM. P. 18.5(g), (h).
30
BLACKS LAW DICTIONARY 157 (6th ed. 1991).
31
ARIZ. R. CRIM. P. 18.4(b). The court, however, may deny the challenge if the requesting party failed to
exercise due diligence. Id.
28

212

(9)

(10)
(11)

(12)
(13)

(14)

(15)

Has been a member of the jury formerly sworn to try the same charge and
whose verdict was set aside, or which was discharged without a verdict
after the case was submitted to it;
Has served as a juror in a civil action brought against the defendant for the
act charged as an offense;
Is on the bond of the defendant or engaged in business with the defendant
or with the person alleged to be injured by the offense charged or on
whose complaint the prosecution was instituted;
Is a witness on the part of the prosecution or defendant or has been served
with a subpoena or bound by an undertaking as such;
Has a state of mind in reference to the action or to the defendant or to the
person alleged to have been injured by the offense charged or on whose
complaint the prosecution was instituted, which will prevent him[/her]
from acting with entire impartiality and without prejudice to the
substantial rights of either party;
If the offense charged is punishable by death, entertains conscientious
opinions which would preclude his[/her] finding the defendant guilty, in
which case [s/]he shall neither be permitted nor compelled to serve as a
juror; or
Does not understand the English language sufficiently well to comprehend
the testimony offered at the trial. 32

This list of objections, formerly enumerated in Rule 219 of the Arizona Rules of Criminal
Procedure (1956), does not encompass all the bases upon which a challenge for cause
may be formed. 33 In fact, the Rule was revised precisely to “direct the attention of
attorneys and judges to the essential question [underlying a challenge for a cause]—
whether a juror can try a case fairly.”34 Today, consequently, the Rule reads:
When there is reasonable ground to believe that a juror cannot render a
fair and impartial verdict, the court, on its own initiative, or on motion of
any party, shall excuse the juror from service in the case. 35
A “reasonable ground” necessitating a juror’s dismissal may be predicated on a juror’s
views on the death penalty. If a prospective juror expresses general objections or a
conscientious opposition to capital punishment, however, s/he cannot automatically be
dismissed. 36 Rather, the court, State, and/or defense must ask the juror additional
questions to attempt to clarify and rehabilitate the juror’s views on capital punishment. 37
If rehabilitation of the juror fails and the juror’s views may “prevent or substantially
32

ARIZ. R. CRIM. P. 18.4(b) cmt.
Id.
34
Id.
35
Id.
36
See State v. Roseberry, 111 P.3d 402, 408 (Ariz. 2005) (reviewing potential jurors’ personal objections
to the imposition of the death penalty); Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding it
unconstitutional to excuse a juror for cause simply because s/he is conscientiously opposed to or expressed
general objections to capital punishment).
37
See State v. Moody, 94 P.3d 1119, 1145 (Ariz. 2004); Wainwright v. Witt, 469 U.S. 412, 424-26
(1985); see also ARIZ. R. CRIM. P. 18.5(d) (calling for a “thorough examination” of the potential jurors by
the court).
33

213

impair the performance of [the juror’s] duties,” the court may excuse the juror. 38 If a
prospective juror states unambiguously that s/he would automatically vote against the
death penalty, regardless of the facts, s/he must be excluded from the jury. 39 Conversely,
if a potential juror states s/he would automatically vote for the death penalty, it is error
for the trial judge to refuse to excuse the juror for cause. 40
b. Peremptory Challenges
A peremptory challenge is “a request from a party that a judge not allow a certain
prospective juror to be a member of the jury.” 41 In all death penalty cases, the defendant
and the State each are allowed ten peremptory challenges. 42 When defendants are tried
jointly for a capital offense, each defendant is allowed five peremptory challenges, while
the State is allowed a total of ten peremptory challenges. 43 Fewer peremptory challenges
may be exercised on the agreement of the parties. 44
The use of a peremptory challenge does not require any sort of justification or cause, 45
unless a party engages in purposeful discrimination on the grounds of race or gender. 46 If
the State or defense believes that jurors are being struck from the jury based on race
and/or gender, the party opposing the strike may challenge the use of the peremptory
challenge. 47 In order to block the strike, the opposing party must establish a prima facie
case of racial and/or gender discrimination. 48 If the opposing party establishes a prima
facie case, the other party must provide a neutral explanation for the exercise of the
challenge. 49 The explanation need not “be persuasive or even plausible, only
legitimate.” 50 The judge then must assess whether the opposing party has established a
discriminatory intent. 51
38

State v. Glassel, 116 P.3d 1193, 1208 (Ariz. 2005) (quoting Wainwright, 469 U.S. at 424).
See Roseberry, 111 P.3d at 408; State v. Anderson, 4 P.3d 369, 373 (Ariz. 2000).
40
See, e.g., State v. Canez, 42 P.3d 564, 578 (Ariz. 2002) (quoting State v. Kayer, 984 P.2d 31, 40 (Ariz.
1999)) (“The ‘trial judge must excuse any potential jurors who cannot provide assurance that their death
penalty views will not affect their ability to decide issues of guilt.’”); Roseberry, 111 P.3d at 408
(“Prospective jurors should be excused for cause if either their objection to, or support of, the death penalty
prevents them from properly judging the facts of a particular case.”).
41
BLACKS LAW DICTIONARY, supra note 30, at 787.
42
ARIZ. R. CRIM. P. 18.4(c)(1), (i).
43
ARIZ. R. CRIM. P. 18.4(c)(2).
44
ARIZ. R. CRIM. P. 18.4(c)(3).
45
Bd. Trustees Eloy Elem. School Dist. v. McEwen, 430 P.2d 727, 734 (Ariz. Ct. App. 1967) (reiterating
“that the right to challenge a given number of jurors without showing cause is one of the most important
rights to a [defendant]”).
46
Batson v. Kentucky, 476 U.S. 79, 89 (1985) (holding that the Equal Protection Clause prohibits the
State from challenging potential jurors solely on the basis of their race); Georgia v. McCollum, 505 U.S.
42, 59 (1992) (holding that a defendant may not engage in “purposeful discrimination on the ground of race
in the exercise of peremptory challenges”); J.E.B. v. Alabama, 511 U.S. 127 (1994) (holding that the Equal
Protection clause prohibits discrimination on the grounds of gender in selecting a jury).
47
Batson, 476 U.S. at 89; McCollum, 505 U.S. at 59; State v. Martinez, 999 P.2d 795, 799-800 (Ariz.
2000).
48
Batson, 476 U.S. at 89; McCollum, 505 U.S. at 59; Martinez, 999 P.2d at 800.
49
Batson, 476 U.S. at 89; McCollum, 505 U.S. at 59; Martinez, 999 P.2d at 799-800 (holding that a black
defendant’s opposition to the death penalty was a neutral explanation).
50
Martinez, 999 P.2d at 800 (quoting Purkett v. Elem, 514 U.S. 765, 767 (1995)).
51
Purkett, 514 U.S at 767.
39

214

3. Appellate Review of Voir Dire
The judge’s control of the scope of voir dire and decisions regarding a juror’s
qualifications are reviewed under an abuse of discretion standard. 52 In reviewing a
judge’s determination of a prospective juror’s qualification, the appellate court must
accord deference to the trial judge’s decision. 53 If a defendant fails to object specifically
to a juror, s/he may waive any challenges to the dismissal on appeal. 54
B. Proposed Pattern Jury Instructions and Case Law Interpretation of Jury
Instructions
At or before the conclusion of evidence, each party must present written requests for jury
instructions and verdict forms to the court. 55 A copy of the requested instructions and
verdict forms also must be provided to all other parties. 56 Prior to closing arguments, the
court will hold a conference to discuss the proposed jury instructions and verdict forms. 57
A capital defendant has the right to a jury instruction on “any theory reasonably
supported by the evidence,” 58 and the trial judge has a duty to instruct the jury on the law
“which relates to the facts of the case and matters necessary for proper consideration of
the evidence.” 59 The trial judge cannot disclose to the jury which instructions, if any,
have been provided at the request of a specific party. 60 On review, to ascertain the
sufficiency of instructions, the court will examine the instructions “in their entirety.” 61
Generally, if a party does not object to the court’s instruction or to the court’s failure to
provide an instruction before the jury begins deliberating, s/he waives the right to raise
any alleged errors on appeal, unless the error is “fundamental.” 62 Failure to instruct the
jury on a matter “vital” to the defendant’s rights constitutes fundamental error. 63 A

52

See State v. Glassel, 116 P.3d 1193, 1205, 1207-08 (Ariz. 2005); State v. Da Volt, 84 P.3d 456, 472
(Ariz. 2004) (using a “clear abuse” standard and finding that the trial court did not abuse its discretion in
denying the defendant’s request to use a jury questionnaire).
53
Glassel, 116 P.3d at 1208.
54
See State v. Jones, 49 P.3d 273, 283 (holding that a capital murder defendant waived on appeal any
challenges to dismiss potential jurors because he only made general objections to their qualifications); State
v. Kayer, 984 P.2d 31, 40 (Ariz. 1999) (noting that absent a specific objection to a juror’s dismissal, a
juror’s dismissal would only be reviewed for fundamental error).
55
ARIZ. R. CRIM. P. 21.2.
56
Id.
57
ARIZ. R. CRIM. P. 21.3(a).
58
Martinez, 999 P.2d at 804.
59
State v. Gamble, 523 P.2d 53, 54 (Ariz. 1974).
60
ARIZ. R. CRIM. P. 21.3(b).
61
State v. Hoskins, 14 P.3d 997, 1015 (Ariz. 2000).
62
ARIZ. R. CRIM. P. 21.3(c); see State v. Dickens, 926 P.2d 468, 489 (Ariz. 1996); State v. Gendron, 812
P.2d 626, 627 (Ariz. 1991) (noting that error “is fundamental when it reaches ‘the foundation of the case or
takes from the defendant a right essential to his defense,’ or is an ‘error of such dimension that it cannot be
said it is possible for a defendant to have had a fair trial’”).
63
Gamble, 523 P.2d at 54.

215

defendant also may waive the right to raise any errors that stem from instructions that
s/he has requested. 64
The following sections will provide an overview of the proposed pattern jury instructions
that have been adopted by the Board of Governors of the State Bar of Arizona. This
overview will be followed by an in-depth description of certain portions of the proposed
pattern jury instructions, along with a discussion of the courts’ interpretation of the
statutory aggravating and mitigating circumstances, and, to the extent possible, the
courts’ interpretation and application of various jury instructions.65 Specifically, we have
highlighted the relevant portions of jury instructions from the aggravation and penalty
phases of two capital jury trials, State v. Gay 66 and State v. Smith. 67 While these two sets
of jury instructions do not allow us to draw statewide conclusions, they do demonstrate
the type of jury instructions that are being provided by the courts.
1. The Application of the Proposed Pattern Jury Instructions
Arizona currently has no pattern jury instructions specifically tailored to the two phases
of a capital defendant’s sentencing hearing, the aggravation/eligibility phase and the
penalty phase. Prior to 2002, Arizona’s capital sentencing scheme vested the trial judge
with the authority to determine if a capital defendant received a sentence of life or
death. 68 Consequently, a judge, not a jury, was responsible for making factual
determinations pertaining to the presence of any aggravating and mitigating
circumstances. 69 Because the capital sentencing determination was entrusted to a judge,
the State of Arizona had no need for jury instructions.
In 2002, the U.S. Supreme Court struck down Arizona’s capital sentencing scheme in
Ring v. Arizona. 70 The Court held that the State’s capital sentencing scheme violated a
defendant’s Sixth Amendment right to a jury trial because it relied on a judge to find the
statutory aggravating circumstance(s) necessary to impose the death penalty.71 In so
doing, the U.S. Supreme Court relied on its decision in Apprendi v. New Jersey, 72 which
held that juries, instead of judges, must determine any facts leading to an increased
sentence. The Court reasoned:
The right to trial by jury guaranteed by the Sixth Amendment would be
senselessly diminished if it encompassed the factfinding necessary to
increase a defendant’s sentence by two years, but not the factfinding

64

State v. Anderson, 111 P.3d 369, 386 (Ariz. 2005) (concluding because the defendant requested the
instruction, he “invited” any error and waived any arguments claiming the instruction was error).
65
As the need for jury instructions only arose in the wake of Ring and the State’s revisions to the capital
sentencing statute, Arizona case law concerning capital jury instructions is also limited.
66
State v. Gay, CR 2001-1542 (May 2004).
67
State v. Smith, CR 95116 (May 2004).
68
Ring v. Arizona, 536 U.S. 584, 588, 591-92 (2002).
69
Id.
70
Id. at 589.
71
Id. at 588-89.
72
530 U.S. 466 (2000).

216

necessary to put him[/her] to death. We hold that the Sixth Amendment
applies to both. 73
In response to Ring, the Arizona Legislature amended the statute to grant jurors the
power to determine whether the death penalty is appropriate.74 Today, unless a defendant
waives his/her right to a jury trial, only a jury may determine the presence of any
aggravating and mitigating circumstances. 75
Due to this recent shift, the Criminal Jury Instruction Committee of the State Bar of
Arizona is in the process of drafting criminal pattern jury instructions for capital cases. 76
The instructions are set to be completed in October 2006. 77 While we have included in
our discussion the relevant portions of the proposed pattern jury instructions that have
been approved by the Board of Governors of the State Bar of Arizona, these instructions
are still in draft form and are subject to change.
a. The Aggravation/Eligibility Phase 78
The aggravation/eligibility phase of a capital defendant’s sentencing hearing is designed
to determine whether the State has proven beyond a reasonable doubt the existence of any
statutory aggravating circumstances. 79 If the State does not prove the existence of at least
one statutory aggravating circumstance, the defendant cannot be sentenced to death. 80 If
the State does prove the existence of a statutory aggravating circumstance, however, the
defendant will proceed to the penalty phase of the trial to determine the defendant’s
sentence. 81
In providing instructions for the aggravation phase, the proposed pattern capital jury
instructions, approved in part by the Board of Governors of the State Bar of Arizona,
begin with a list of the possible penalties that may be imposed on the defendant—“death,
or imprisonment for life without the possibility of release from prison, or imprisonment

73

Ring, 536 U.S. at 609.
COMMITTEE ON PUBLIC INSTITUTIONS AND RETIREMENT, Minutes of Meeting (Feb. 7, 2005), Ariz.
H.R.,
47th
Leg.
(1st
Reg.
Sess.),
available
at
74

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/legtext/47leg/1R/comm_min/House/020705PIR.DOC.htm.
75

A capital defendant, however, has no right to have the same jury which decided his/her guilt, also
decide his/her sentence. State v. Anderson, 111 P.3d 369, 389 (Ariz. 2005) (rejecting defendant’s claim
that “because the jury at the penalty phase may consider any mitigation presented during the guilt phase. . .,
a different jury cannot sit in the penalty phase”).
76
Unlike most other states, the Supreme Court of Arizona does not formally accept pattern jury
instructions.
See The
State Bar
of
Arizona,
Criminal
Jury
Instructions, at
http://www.myazbar.org/SecComm/Committees/CRJI/crji.cfm (last visited March 3, 2006). Instead,
Arizona courts may approve or disapprove of individual pattern jury instructions when they review them on
appeal.
77
Telephone Interview with Nedra Brown, Director of Sections and Committee, State Bar of Arizona
(Feb. 21, 2006).
78
Although the Arizona code refers to this portion of the sentencing hearing as the aggravation phase, the
draft version of the Capital Case Sentencing Instructions refers to the aggravation phase as the eligibility
phase.
79
ARIZ. REV. STAT. §§ 13-703(B); 13-703.01(C) (2005).
80
ARIZ. REV. STAT. § 13-703.01(E) (2005).
81
ARIZ. REV. STAT. § 13-703.01(D) (2005).

217

for life with the possibility of release after twenty-five or thirty-five years.”82 The
instructions then proceed to explain the bifurcated nature of the sentencing hearing: (1) a
phase, in which the “jury decides whether any aggravating circumstances exist,” and (2)
if necessary, a second phase, in which the jury decides whether to sentence the defendant
to life imprisonment or death. 83
When assessing the existence of any statutory aggravating circumstances, the proposed
instructions direct the jury to consider the testimony and exhibits that the court has
admitted into evidence at either the trial and/or the aggravation/eligibility phase, with the
caveat that any “[e]vidence that was admitted for a limited purpose shall not be
considered for any other purpose.”84
The proposed instructions for the
aggravation/eligibility phase also direct jurors to “not be swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, or public feeling,” nor to be
influenced by “[r]ace, color, religion, national ancestry, gender or sexual orientation” in
performing their duties. 85
b. The Penalty Phase
During the penalty phase of a capital defendant’s sentencing hearing, the jury will
determine whether the defendant should be sentenced to life imprisonment or death. 86
The proposed pattern capital jury instructions for the penalty phase, approved in part by
the Board of Governors of the State Bar of Arizona, begin by reiterating to jurors that
they “must not be influenced at any point in these proceedings by conjecture, passion,
prejudice, public opinion or public feeling” nor be “swayed by mere sympathy not related
to the evidence presented during the penalty phase.” 87 The proposed instructions also
provide that jurors “must not be influenced by [their] personal feelings of bias or
prejudice for or against the [d]efendant or any person involved in th[e] case on the basis
of anyone’s race, color, religion, national ancestry, gender or sexual orientation.” 88
In assessing whether the death penalty should be imposed, the proposed pattern capital
jury instructions direct the jurors to consider evidence admitted during the trial, the
aggravation/eligibility phase, and the penalty phase. 89 The instructions specifically
inform the jury that:

82

Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.1 Nature of the Hearing (Feb. 20,
2006) (approved by the Board of Governors on May 20, 2005) (on file with author).
83
Id.
84
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.3 Evidence (Feb. 20, 2006) (approved
by the Board of Governors on May 20, 2005) (on file with author).
85
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.2 Nature of the Hearing (Feb. 20,
2006) (approved by the Board of Governors on May 20, 2005) (on file with author).
86
ARIZ. REV. STAT. § 13-703.01(D), (E) (2005).
87
Draft Capital Case Sentencing Instructions, Penalty Phase, 2.1 Nature of Hearing and Duties of Jury
(Feb. 20, 2006) (approved by the Board of Governors on May 20, 2005) (on file with author).
88
Id.
89
Draft Capital Case Sentencing Instructions, Penalty Phase, 2.2 Evidence (Feb. 20, 2006) (approved by
the Board of Governors on May 20, 2005) (on file with author). The proposed pattern instructions also
state that “evidence that was admitted for a limited purpose shall not be considered for any other purpose.”
Id.

218

During this part of the sentencing hearing, the Defendant and the State
may present any evidence that is relevant to the determination of whether
there is mitigation that is sufficiently substantial to call for leniency. The
State may also present any evidence that demonstrates that the Defendant
should not be shown leniency.
Mitigating circumstances may be found from any evidence presented
during the trial, during the first part of the sentencing hearing or during the
second part of the sentencing hearing. 90
Under the proposed pattern capital jury instructions, each juror “should consider all of the
evidence presented” without consideration as to which party presented it. 91 Jurors also
are instructed that they are “the sole judges of the credibility of the witnesses” and of the
weight that is to be accorded to the testimony of each witness. In assessing a witness’
testimony, the proposed pattern instructions allow jurors to consider the “opportunity and
ability of the witness to observe, the witness’ memory and manner while testifying, any
interest, bias or prejudice the witness may have, the reasonableness of the testimony of
the witness considered in a light of all the evidence, and any other factors that bear on
credibility and weight.” 92
In reaching a verdict, the proposed pattern capital jury instructions impose upon jurors a
duty to “discuss the case” and “consider the evidence” with their fellow jurors. 93
2. Statutory Aggravating Circumstances
Arizona’s capital sentencing scheme is comprised of an exclusive set of aggravating
circumstances, detailed in section 13-703(F) of the Arizona Revised Statutes (A.R.S.). 94
These statutory aggravating circumstances serve to “genuinely narrow the class of
persons eligible for the death penalty and [to] reasonably justify the imposition of a more
severe sentence” on one defendant convicted of a capital offense as opposed to another. 95
In providing jury instructions defining statutory aggravating circumstances, the Arizona
Supreme Court has approved instructions stating that “[a]ggravating factors are those
which increase the guilt or enormity of the offense.” 96 The Smith court also used this
language in defining the term “statutory aggravating circumstances” to jurors. 97
The proposed pattern jury instructions state that “[i]n deciding whether an aggravating
circumstance exists, you are not to be swayed by mere sentiment, conjecture, sympathy,
90

Id.
Id.
92
Id.
93
Draft Capital Case Sentencing Instructions, Penalty Phase, 2.4 Duty to Consult With One Another
(Feb. 20, 2006) (approved by the Board of Governors on May 20, 2005) (on file with author). In so doing,
the instructions also state to the jurors that: “Each of you must decide the case for yourself.”
94
ARIZ. REV. STAT. § 13-703(F) (2005).
95
Zant v. Stephens, 462 U.S. 862, 877 (1983); State v. Martinez, 115 P.3d 618, 622 n.5 (Ariz. 2005).
96
State v. Anderson, 111 P.3d 369, 391 (Ariz. 2005) (holding that the instruction did not constitute
fundamental error). See also State v. Carreon, 107 P.3d 900, 917-18 (Ariz. 2005).
97
Final Instructions, Aggravation Phase, State v. Smith, Jr. CR 95116, 64 (May 18, 2004).
91

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passion, prejudice, public opinion, or public feeling. Race, color, religion, national
ancestry, gender or sexual orientation should not influence you.” 98
a. Interpretation of the Statutory Aggravating Circumstances
i. The (F)(1) Aggravating Circumstance: The Defendant has been
convicted of another offense in the United States, and under Arizona
law a sentence of life imprisonment could be or was imposed.
The term “conviction” signifies “a determination of guilty,” not a formal entry of
judgment. 99 A determination of guilt arises when a defendant pleads guilty in open court,
or the jury or trial judge returns a guilty verdict. 100
This statutory aggravator may be predicated on an offense occurring after the capital
murder offense for which the State is seeking the death penalty, so long as the conviction
for the other offense is entered before the defendant’s sentencing hearing. 101 A prior
conviction, if invalidated, may not be used to support this aggravating circumstance. 102
In determining whether a defendant could have received life imprisonment, the court will
consider the potential sentences allowed for the crime on the date of the actual offense. 103
In State v. Smith, the court provided the following (F)(1) instruction to the jury:
To determine whether the [S]tate has proven this allegation, you must
make two decisions: First, you must decide whether the defendant has
been convicted in at least one of these cases: CR 77216 (rape), CR 77394
(rape), and CR 92168 (rape). Second, if you find that he has been
convicted of one or more of these offenses, then you must decide whether
under the law in effect at the time of the conviction that rape was an
offense for which a sentence of life or death was imposable. 104
ii. The (F)(2) Aggravating Circumstance: The Defendant was previously
convicted of a serious offense, either preparatory or completed.
Convictions for serious offenses committed on the same occasion as
the homicide, or not committed on the same occasion but consolidated
for trial with the homicide, shall be treated as a serious offense under
this paragraph.

98

Draft Capital Case Sentencing Instructions, supra note 85.
State v. Walden, 905 P.2d 974, 994 (Ariz. 1995) rejected on other grounds.
100
Id. at 994-95.
101
See State v. Moody, 94 P.3d 1119, 1165 (Ariz. 2004) (holding that each of defendant’s two murder
convictions supported applying the (F)(1) aggravating circumstance to the other murder offense, even
though the defendant committed the murders on different occasions).
102
State v. Jordan, 614 P.2d 825, 829-30 (Ariz. 1980).
103
State v. Atwood, 832 P.2d 593, 647-48 (Ariz. 1992), overruled on other grounds, (although stating that
the court should consider the potential sentence allowed for the crime on the date of the actual offense, the
Court did not appear to foreclose using the date of sentencing).
104
Final Instructions, Aggravation Phase, State v. Smith, Jr., CR 95116 65 (May 18, 2004).
99

220

In order for a jury to find that this aggravating circumstance exists, the State must prove
beyond a reasonable doubt that the defendant was convicted of a “serious offense.” 105
Section 13-703(I) of the A.R.S. defines a “serious offense” to include thirteen offenses:
(1) first degree murder, (2) second degree murder, (3) manslaughter, (4) aggravated
assault resulting in serious physical injury or committed by the use, threatened use or
exhibition of a deadly weapon or dangerous instrument, (5) sexual assault, (6) any
dangerous crime against children, (7) arson of an occupied structure, (8) robbery, (9)
burglary in the first degree, (10) kidnapping, (11) sexual conduct with a minor under
fifteen years of age, (12) burglary in the second degree, and (13) terrorism. 106 A serious
offense is not limited to the crimes detailed in the statute, however. For instance, in State
v. Martinez, the Arizona Supreme Court affirmed the lower court’s finding that the
“dangerous or deadly assault by a prisoner,” although not specifically delineated in
section 13-703(I), constituted a serious offense for the purpose of determining the
presence of this aggravating circumstance. 107
The State may also seek the death penalty on the basis of this aggravating circumstance
in expectation that the defendant will be convicted of a serious felony. 108 As long as the
conviction for the serious offense is entered before the capital defendant’s sentencing
proceeding, the conviction may constitute an aggravating circumstance, regardless of the
order of the crimes’ occurrences or convictions. 109
In State v. Smith, the court provided the jury with the following instruction in determining
whether the (F)(2) aggravating circumstance existed:
Concerning this alleged aggravating circumstance, the [S]tate claims that
the defendant has been previously convicted of a felony involving the use
or threat of violence on another person. To determine whether the [S]tate
has proven this alleged aggravated circumstance, you must make two
decisions. First, you must determine whether the defendant has been
convicted of the first-degree murder of Sandy Spencer. Second, you must
determine whether that first-degree murder conviction was a felony that
necessarily involved the use or threat of violence on another person.
In deciding whether the murder of Sandy Spencer necessarily involved the
use or threat of violence, you are to consider (1) the statutory definition of
“first degree murder” contained in Exhibit 6; (2) the indictment charging
105

See State v. Martinez, 999 P.2d 795, 805 (Ariz. 2000).
ARIZ. REV. STAT. § 13-703(I) (2005).
107
Martinez, 999 P.2d at 805-06 (noting that if the offenses listed in section 13-703(I) of the A.R.S. were
identified by statute numbers, then the conviction for “dangerous or deadly assault by a prisoner” would not
qualify as a previous conviction for a serious offense under section 13-703(F)(2)). Note that Martinez
refers to the aggravating circumstance enumerated in section 13-703(H) of the A.R.S. which has been
renumbered as 13-703(I).
108
See State v. Lee, 944 P.2d 1204, 1218-19 (Ariz. 1997) (noting that a (F)(2) finding “applies to prior
convictions as well as simultaneous convictions”).
109
See ARIZ. REV. STAT. § 13-703(F)(2) (2005); Lee, 944 P.2d at 1218-19. But see State v. Rutledge, 76
P.3d 443, 446-47 n.6 (Ariz. 2003) (holding that a serious offense conviction arising out of the same event
as a murder charge could not be used to support the (F)(2) aggravator, if the offense occurred before May
26, 2003, the effective date of an amendment to A.R.S. § 13-703(F)(2) allowing for a “serious crime”
occurring at the same time as the murder to support a (F)(2) finding).
106

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the defendant with the first-degree murder of Sandy Spencer, Exhibit 5;
and (3) the definition of violence detailed below. You cannot consider the
specific facts of the offense; you are to solely consider the documents just
described in deciding this aggravating factor. 110
iii. The (F)(3) Aggravating Circumstance: In the commission of the
offense the Defendant knowingly created a grave risk of death to
another person or persons in addition to the person murdered during
the commission of the offense.
A grave risk of death to another is presented only if the defendant’s commission of the
murder 111 places others in a “zone of danger.” 112 Generally, the “mere presence of
bystanders or pointing a gun at another to facilitate escape” does not support a finding of
this aggravating circumstance. 113 Instead, the court must determine whether “during the
course of the killing, the defendant knowingly engaged in conduct that created a real and
substantial likelihood that a specific third person might suffer fatal injuries.” 114
Arizona courts have failed to uphold this aggravator where the defendant intended to kill
the victim. 115
iv. The (F)(4) Aggravating Circumstance: The Defendant procured the
commission of the offense by payment, or promise of payment, of
anything of pecuniary value.
This aggravating circumstance generally applies in cases where the defendant hires an
individual to commit murder. 116 The State may prove the existence of this aggravator by
showing that the defendant “got the actual killers to commit the murder by promising to
110

Final Instructions, Aggravation Phase, State v. Smith, Jr. CR 95116, 65 (May 18, 2004).
Only the actions surrounding the “murderous act itself” uphold this statutory aggravating
circumstance. See State v. McCall, 677 P.2d 920, 933 (Ariz. 1983); see also State v. Tucker, 68 P.3d 110,
121 (Ariz. 2003) (concluding that a reasonable jury could disagree as to whether a risk of death was present
during the defendant’s “murderous attack” on three others which left an infant alone in a house).
112
See State v. Carreon, 107 P.3d 900, 913 (Ariz. 2005) (concluding that although the victim’s sons were
present during her murder, “they were not within the zone of danger created by [the defendant’s]
murderous attack” because the gun shots were in the direction opposite their room); Tucker, 68 P.3d at 121.
113
State v. Wood, 881 P.2d 1158, 1174 (Ariz. 1994). See State v. Jeffers, 661 P.2d 1105, 1129-30 (Ariz.
1983) (holding that the (F)(3) aggravating circumstance was not proven where defendant pointed a gun at
an individual to ensure her cooperation while he killed another); see also State v. Smith, 707 P.2d 289, 300
(Ariz. 1985) (reversing the trial judge’s finding of the (F)(3) aggravating circumstance where the defendant
shot a convenience store owner in the presence of others and where he pointed the gun at two individuals in
the parking lot while directing them to leave); State v. Nash, 694 P.2d 222, 235 (Ariz. 1985) (finding the
individual was within the zone of danger because of her close proximity to the victim during the murder
and the fact that the defendant pointed the gun at her while shooting the victim, and distinguishing the case
from Jeffers on the grounds that the defendant there only pointed the gun at the third party “to quiet her”
and intended no harm to the third party).
114
Carreon, 107 P.3d at 913 (quoting State v. Gonzalez, 892 P.2d 838, 850 (Ariz. 1995)).
115
See McCall, 677 P.2d at 933-34 (holding that because the shootings were neither “random [n]or
indiscriminate,” but “purposeful and intentional,” the aggravating circumstance failed to exist); State v.
Fierro, 804 P.2d 72, 83 (Ariz. 1990) (upholding the (F)(3) aggravating circumstance because the defendant
had no intent to kill the third party).
116
See State v. Carlson, 48 P.3d 1180, 1190 (Ariz. 2002).
111

222

pay them.” 117 In State v. Carlson, for instance, the defendant was found to have procured
the commission of the murder by promising to pay the killer $20,000. 118 In another
instance, in State v. Robinson, the Court concluded that the defendant secured the
commission of the murders by promising that either drugs or money would be found at
the victims’ home. 119
v. The (F)(5) Aggravating Circumstance: The Defendant committed the
offense as consideration for the receipt, or in expectation of the
receipt, of anything of pecuniary value.
This aggravating circumstance refers to the “motive” or “cause of” the murder, which
must be based on the “receipt or expectation of anything of pecuniary value.” 120 Here,
the central issue is whether the murder is “prompted by the desire for pecuniary gain;” 121
the “expectation of pecuniary gain” must be “a motive, cause, or impetus for the murder
and not merely a result of the murder.” 122 Financial gain, therefore, does not have to be
the sole reason for the murder, but simply one of the reasons. 123
The (F)(5) aggravating circumstance does not exist in all cases where a defendant
benefits financially from a murder. 124 Simply “because money and items [are] taken”
does not mean the purpose of a murder is pecuniary gain. 125 Conversely, the fact that no
property is taken from the murder victim does not mean the aggravator fails to exist. 126
In State v. Gay, the court used the following (F)(5) instruction:

117

Id.
Id. at 1185.
119
State v. Robinson, 796 P.2d 853, 861-62 (Ariz. 1990). The court found the (F)(4) aggravating
circumstance on these facts alone-- the defendant provided the murder weapon to the actual killer, directed
the actual killer to the victims’ home, with whom the killer shared no relationship, and the actual killer
demanded drugs and money before fatally shooting the victims.
120
See State v. Lamar, 115 P.3d 611, 615 (Ariz. 2005) (quoting State v. Hyde, 921 P.2d 655, 683 (Ariz.
1996)).
121
See State v. Anderson, 111 P.3d 369, 393 (Ariz. 2005) (rejecting the defendant’s argument that
because no property was taken from some of the victims this aggravating circumstance could not be found).
122
Id.
123
See State v. Armstrong, 93 P.3d 1076, 1079 n.2 (Ariz. 2004) (concluding that the (F)(5) aggravating
circumstance should be found “if the receipt of money is established as a cause of the murders” and noting
that the “but for” test is not mandated by Arizona case law or A.R.S. § 13-703(F)(5)). In State v.
Prasertphong, 76 P.3d 438, 440 (Ariz. 2003) (quoting State v. Ring, 65 P.3d 915, 942 (Ariz. 2003)), the
Arizona Supreme Court specified that the murder must not have transpired “but for” the defendant’s
pecuniary motive. In so doing, the Court also interpreted the “but for” language to mean that "the
expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the
murder." See Prasertphong, 76 P.3d at 440 (quoting State v. Hyde, 921 P.2d 655, 683 (Ariz. 1996)).
124
State v. Rutledge, 76 P.3d 443, 446 (Ariz. 2003) (“Proving a taking in a robbery or the existence of
some economic motive at some point during the events surrounding a murder does not necessarily prove
the motivation for a murder.”).
125
State v. Gillies, 662 P.2d 1007, 1019 (1983) (finding that “the purpose of the murder was to eliminate
the victim as a witness to her own rape”).
126
Anderson, 111 P.3d at 393 (noting that “the pecuniary gain aggravator does not require that property be
taken from each victim”).
118

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To establish the aggravating circumstance that the murder was committed
for pecuniary value, the State must prove beyond a reasonable doubt that
the receipt of something of pecuniary value was a motive, cause or
impetus for the murder and not merely the result of the murder.
The pecuniary value motive need not have been the defendant’s only
motive for the murder. There may be other motives for murder. This
aggravating circumstance does not merely exist because a person was
murdered and after the murder the defendant obtained something of
pecuniary value. To find this aggravating circumstance, you must find a
connection between the murder and the defendant’s pecuniary motive.
“Pecuniary value” as used in this instruction means anything of monetary
value, including property.
The verdict of guilty for burglary is not sufficient by itself to prove the
murder was motivated by receipt of something of pecuniary value. 127
vi. The (F)(6) Aggravating Circumstance: The Defendant committed the
offense in an especially heinous, cruel or depraved manner.
This aggravating circumstance pertains only to those murders “wherein additional
circumstances of the nature enumerated above set the crime apart from the usual or the
norm." 128 While all three factors—especially heinous, cruel, or depraved– may be found,
only one factor must be established for the aggravator to exist. 129
Although the U.S. Supreme Court held the (F)(6) aggravating circumstance to be facially
vague in Walton v. Arizona, 130 the Court concluded that enough substance had been
provided to the statute’s “operative terms” to render it constitutional.131 The Arizona
Supreme Court has since held the following (F)(6) instruction to be constitutionally
sufficient:
The terms “heinous” and “depraved” focus on the defendant’s mental state
and attitude at the time of the offense as reflected by his[/her] words and
actions. A murder is especially heinous if it is hatefully or shockingly
evil. A murder is depraved if marked by debasement, corruption,
perversion or deterioration.
In order to find heinousness or depravity, you must find beyond a
reasonable doubt that the defendant exhibited such a mental state at the
127

Final Jury Instructions, Phase II, State v. Gay, CR 2001-1542 74 (May 4, 2004).
State v. Gretzler, 659 P.2d 1, 10 (Ariz. 1983) (quoting State v. Knapp, 562 P.2d 704, 716 (Ariz.
1977)).
129
Gretzler, 659 P.2d at 51. The finding of all three factors supports only one aggravating circumstance.
State v. Miller, 921 P.2d 1151, 1164 (Ariz. 1996).
130
497 U.S. 639 (1990).
131
Id. at 654. Since Ring, which mandated the jury to find aggravating circumstances, the Arizona
Supreme Court has continued to reject vagueness challenges. See Anderson, 111 P.3d at 394-95.
128

224

time of the offense by doing at least one of the following acts: One,
relishing the murder. In order to relish a murder the defendant must show
by his words or actions that [s/]he savored the murder. These words or
actions must show debasement or perversion, and not merely that the
defendant has a vile state of mind or callous attitude.
Statements suggesting indifference, as well as those reflecting the
calculated plan to kill, satisfaction over the apparent success of the plan,
extreme callousness, lack of remorse, or bragging after the murder are not
enough unless there is evidence that the defendant actually relished the act
of murder at or near the time of the killing.
Two, inflicted gratuitous violence on the victim clearly beyond that
necessary to kill.
Three, needlessly mutilated the victim’s body. In order to find this factor,
it must be proven beyond a reasonable doubt that the defendant had a
separate purpose beyond murder to mutilate the corpse.
The term “cruel” focuses on the victim’s state of mind. Cruelty refers to
the pain and suffering the victim experiences before death. A murder is
especially cruel when there has been the infliction of pain and suffering in
an especially wanton and insensitive or vindictive manner. The defendant
must know or should have known that the victim would suffer. 132
A finding of cruelty requires conclusive evidence that the victim was
conscious during the infliction of the violence and experienced significant
uncertainty as to his or her ultimate fate. The passage of time is not
determinative.
a. Especially Cruel
The "especially cruel" factor embodies a murder victim’s mental anguish and physical
pain. 133 For cruelty to exist, the court must find that (1) the victim, while conscious,
experienced mental or physical pain; and (2) the defendant knew or should have known
that the victim would suffer. 134
Mental anguish encompasses instances in which a victim is uncertain of his/her fate 135 as
well as instances in which a victim is forced to witness the murder of a loved one. 136 In
132

Anderson, 111 P.3d at 394-95 n.19.
State v. Trostle, 951 P.2d 869, 883 (Ariz. 1997); see State v. Moody, 94 P.3d 1119, 1167 (Ariz. 2004)
(refusing to uphold this aggravating circumstance despite concluding that the victim did experience
physical and mental pain before dying).
134
Trostle, 951 P.2d at 883; Moody, 94 P.3d at 1167 (refusing to uphold this aggravating circumstance
although the evidence showed the victim suffered because the court was unsure as to whether the defendant
was conscious of the suffering).
135
State v. Jackson, 918 P.2d 1038, 1047 (Ariz. 1996) (noting the victim repeatedly begged for her life
after being driven to a remote desert area). More recently, the Arizona Supreme Court has noted that
“[f]ew especially cruel findings . . . are predicated solely on an inference that the victim contemplated his
133

225

regards to physical suffering, evidence of a “prolonged, bloody struggle and the victim’s
defensive wounds” may establish cruelty.137 A victim’s physical pain need not withstand
the duration of the murder, but only a short period. 138 Rape constitutes both mental and
physical suffering. 139
A defendant cannot be “vicariously liable” for cruelty in a capital case, “absent a plan
intended or reasonably certain to cause suffering.” 140 However, where a defendant is
present and actively participates in the murder, a finding of cruelty is not precluded by
the fact that s/he did not “inflict the fatal blows.” 141
b. Especially Heinous or Depraved Manner
The terms “heinous or depraved” refers to a defendant’s state of mind. 142 To determine if
the defendant’s state of mind was “especially heinous or depraved,” Arizona courts have
outlined six factors to be considered: (1) “whether the defendant relished the murder,” 143
(2) “whether the defendant inflicted gratuitous violence on the victim,” 144 (3) “whether
the defendant needlessly mutilated the victim,” 145 (4) “the senselessness of the crime,” 146
or her fate…The length of time during which a victim contemplates [his/]her fate affects whether the
victim’s mental anguish is sufficient to bring a murder within that group of murders that is especially
cruel.” State v. Prince, 75 P.3d 114, 117 (Ariz. 2003).
136
State v. Dickens, 926 P.2d 468, 491 (Ariz. 1996) (upholding that the murder was cruel where the
victim was forced to witness the murder of his wife); State v. Ramirez, 871 P.2d 237, 250 (Ariz. 1994)
(finding the murder was especially cruel in part because the victims, a mother and daughter, were aware of
each other’s suffering).
137
Ramirez, 871 P.2d at 250; see State v. Sansing, 77 P.3d 30, 34 (Ariz. 2003) (finding the victim was
murdered in an especially cruel manner where she struggled for fifteen minutes after being initially
attacked, was clubbed in the head, sexually assaulted and stabbed).
138
See State v. Schackart, 947 P.2d 315, 325 (Ariz. 1997) (recognizing that the Arizona Supreme Court
has held suffering anywhere between eighteen seconds to two to three minutes may be sufficient for the
(F)(6) aggravator to exist).
139
Sansing, 77 P.3d at 34.
140
State v. Carlson, 48 P.3d 1180, 1193 (Ariz. 2002) (finding the aggravator not applicable when
defendant hired a killer who “bungled” the killing). “The plan must be such that suffering before death
must be inherently and reasonably certain to occur, not just an untoward event.” Id.
141
See Anderson, 111 P.3d at 395 (holding the (F)(6) aggravating circumstance to apply where the
defendant cut the throat of one victim and held the victim down while another put a knife through the
victim’s ear, and where the defendant struck another victim with a lantern and provided an accomplice with
the murder weapon).
142
State v. Murdaugh, 97 P.3d 844, 856 (Ariz. 2004).
143
Generally, in order to show a defendant relished the murder, the defendant must “say or do something,
other than the commission of the crime itself, to show [s/]he savored the murder.” State v. Roscoe, 910
P.2d 635, 651 (Ariz. 1996). See State v. Detrich, 932 P.2d 1328, 1339 (Ariz. 1997) (finding a defendant’s
remark that “It’s dead, but it’s warm. Do you want a shot at it?” showed the defendant relished the
murder); State v. Maturana, 882 P.2d 933, 939 (Ariz. 1994) (finding the defendant relished the murder
where the defendant bragged “how great it was,” and showed no remorse).
144
Gratuitous violence is violence “beyond that necessary to kill” and “alone may demonstrate a heinous
or depraved state of mind.” See State v. Rienhardt, 951 P.2d 454, 465 (Ariz. 1997) (finding gratuitous
violence where the victim was severely beaten and had two boulders dropped on his head after being fatally
shot); see also Sansing, 77 P.3d at 35-36 (finding that the “rape, facial wounds, neck ligatures, gagging,
blind-folding, and grinding of the knife” into the victim constituted gratuitous violence).
145
Needless mutilation may occur when the defendant mutilates the victim's body after death, indicating
“a mental state that is ‘marked by debasement.’” See State v. Pande, 65 P.3d 950, 953 (Ariz. 2003)
(finding that the fact the defendant severed the victim’s nipples after her death supported a finding of the

226

(5) “the helplessness of the victim,” 147 and (6) “whether the defendant intended to
eliminate a witness.” 148 The senselessness and helplessness factors, on their own, rarely
support a finding of heinous or depravity. 149
While the six factors articulated by the Arizona Supreme Court are not all-encompassing,
the Court, in order to preserve the statute’s constitutionality, is reluctant to expand the
construction of the terms “especially heinous or depraved.” 150 Nonetheless, the murder
of one’s own child or a child with whom a defendant shares a caretaker relationship also
may constitute a murder that is committed in an especially heinous or depraved
manner. 151
vii. The (F)(7) Aggravating Circumstance: The Defendant committed the
offense while (a) in the custody of, or on authorized or unauthorized
release from, the state department of corrections, a law enforcement
agency or a county or city jail; or (b) on probation for a felony
offense. 152

(F)(6) aggravator); State v. Stokley, 898 P.2d 454, 467 (Ariz. 1995) (upholding the trial court’s finding of
both gratuitous violence and needless mutilation where the defendant stabbed the victims’ eyes and
stomped on the victims).
146
“A murder is senseless if it is unnecessary for the defendant to complete his[/her] objective.” State v.
Lee, 944 P.2d 1222, 1233 (Ariz. 1997) (holding the murder to be senseless because the defendant did not
need to kill the victim in order to complete a robbery). Generally, senseless alone is not enough to
constitute an “especially heinous or depraved manner.” Id. The murder of a “helpless child” has been
“inherently” deemed senseless. See State v. Jones, 72 P.3d 1264, 1269 (Ariz. 2003) (finding that the
murder of a 12 years-old girl who was “smaller and weaker” than the defendant and whose arms were
bound, was senselessness and that the victim was helpless).
147
A victim is helpless when s/he is “unable to resist the murder.” Jones, 72 P.3d at 1269. See Sansing,
77 P.3d at 36 (concluding the victim was rendered helpless after having her wrists and ankles bound); State
v. Hyde, 921 P.2d 655, 683 (Ariz. 1996) (finding the victims to be helpless because of their ages (seventytwo years old and fifty years old), their small statures, and their positions on the floor while being
attacked); State v. Jackson, 918 P.2d 1038, 1048 (Ariz. 1996) (finding a victim who is unarmed,
outnumbered three to one, and wearing no shoes or jacket to be helpless); see also State v. Gulbrandson,
906 P.2d 579, 602 (Ariz. 1995) (noting that “evidence of a protracted struggle does not negate the finding
of helplessness”).
148
See State v. Gretzler, 659 P.2d 1, 10-12 (Ariz. 1983) (discussing the factors of (1) relishing of the
murder, (2) gratuitous violence, (3) needless mutilation, (4) senselessness, and (5) helplessness); State v.
Ross, 886 P.2d 1354, 1362 (Ariz. 1994) (discussing how murders motivated by a defendant’s desire to
eliminate a witness may support a finding of heinousness or depravity).
149
State v. Trostle, 951 P.2d 869, 883 (Ariz. 1997).
150
See State v. Barreras, 892 P.2d 852, 859-60 (Ariz. 1995) (refusing to uphold a finding that the murder
was heinous and depraved on the factors of helplessness and senseless alone).
151
See State v. Milke, 865 P.2d 779, 787 (Ariz. 1993) (holding that the use of the parental relationship “in
partial support of a finding of heinousness and depravity under section 13-703(F)(6)” constitutional and
that the “parent /child relationship is a circumstance that separates the crime from the ‘norm of first degree
murders’”). But see State v. Styers, 865 P.2d 765, 777 (Ariz. 1993) (finding that the fact that the victim
and the defendant shared a “special relationship in that defendant was the child’s full-time caregiver for
several months” before killing the child demonstrated the defendant’s depravity and made “the crime even
more senseless and the victim especially helpless as to [the] defendant”).
152
The (F)(7) statutory aggravating circumstance was amended in 2003 to include a defendant on
probation for a felony offense. See 2003 ARIZ. SESS. LAWS, 1ST REG. SESS., CH. 255, § 1. The amendment
applies to capital offenses that occurred on or after May 26, 2003, the effective date of the amendment.

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To find the existence of this aggravating circumstance, the State must present evidence
that the defendant was in custody or released by the appropriate entity during the
murder. 153 The testimony of a parole officer, by itself, can warrant the finding of this
aggravator. 154 This aggravating circumstance also applies to any defendant released from
the custody of the Federal Bureau of Prisons. 155
viii. The (F)(8) Aggravating Circumstance: The Defendant has been
convicted of one or more other homicides, and those homicides were
committed during the commission of the offense.
To prove the existence of this aggravator, the State must prove that the homicides were
“temporally, spatially, and motivationally related, taking place during ‘one continuous
course of criminal conduct.’” 156
The homicides are spatially related if the victims were all in “close proximity.” 157 To be
temporally related, the homicides must have occurred “within moments” of each other or
during a “short, uninterrupted span of time.” 158 A motivational relationship is established
when a defendant’s motive to kill is the same for all victims, 159 or, if differences exist as
to the defendant’s “precise motive for killing,” when the motives are sufficiently
“related.” 160 The Arizona Supreme Court has found murders to be sufficiently “related”
where, for example, a defendant intends to kill only one individual, but kills others
because of their presence at the crime scene.161
Once proven, this aggravating circumstance can attach to each first-degree murder
conviction. 162
ix. The (F)(9) Aggravating Circumstance: Defendant was an adult at the
time the offense was committed, or was tried as an adult, and the
murdered person was under fifteen years of age, or was seventy years
of age or older.
The defendant need not have knowledge of the victim’s age at the time of the offense for
this aggravating circumstance to apply. 163 Nor must documentation be admitted to prove
153

See, e.g., State v. Carreon, 107 P.3d 900, 912 (Ariz. 2005).
State v. Jones, 4 P.3d 345,365 (Ariz. 2000).
155
State v. Lamar, 115 P.3d 611, 615 (2005) (noting that the Federal Bureau falls within the Department
of Justice, which is a “law enforcement agency”).
156
State v. Prasertphong, 76 P.3d 438, 441 (Ariz. 2003) (supp. op.).
157
See State v. Anderson, 111 P.3d 369, 393-94 (Ariz. 2005) (finding the murders were spatially related
as all three victims were killed in “close physical proximity” on the same residential property); State v.
Dann, 79 P.3d 58, 60 (Ariz. 2003) (finding the murders were spatially related where the victims were all
sitting near one another in the same room).
158
Dann, 79 P.3d at 60 (finding the murders to be temporally related as they occurred within moments of
each other, i.e. “a short, uninterrupted span of time”); State v. Armstrong, 93 P.3d 1076, 1080 (Ariz. 2004)
(finding a temporal relationship where the killings were “within moments of each other,” in this case,
within seconds of each other).
159
See State v. Glassel, 116 P.3d 1193, 1201, 1216 (Ariz. 2005).
160
Armstrong, 93 P.3d at 1081.
161
See Dann, 79 P.3d at 61; see also Armstrong, 93 P.3d at 1080-81.
162
State v. Djerf, 959 P.2d 1274, 1288 (Ariz. 1998).
154

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the age of the victim; courts have found the testimony of two witnesses and a defendant’s
reference to the victim’s age in a sentencing memorandum sufficient to support a finding
of the aggravating circumstance. 164
x. The (F)(10) Aggravating Circumstance: Murdered person was an on
duty peace officer who was killed in the course of performing the
officer’s official duties, and the Defendant knew, or should have
known, that the murdered person was a peace officer.
Section 13-105(25) of the A.R.S. defines a “peace officer” as “any person vested by law
with a duty to maintain public order and make arrests.” 165 A defendant “knew or should
have known” that the victim was a peace officer when, for instance, an officer is in a
marked car and in uniform. 166
xi.

The (F)(11) Aggravating Circumstance: The Defendant committed the
offense with the intent to promote, further or assist the objectives of a
criminal street gang or criminal syndicate or to join a criminal street
gang or criminal syndicate.

A thorough and exhaustive review of the relevant published Arizona case law has not
revealed a judicial interpretation of this aggravating circumstance at the time of the
release of this report.
xii. The (F)(12) Aggravating Circumstance: The Defendant committed the
offense to prevent a person’s cooperation with an official law
enforcement investigation, to prevent a person’s testimony in a court
proceeding, in retaliation for a person’s cooperation with an official
law enforcement investigation or in retaliation for a person’s testimony
in a court proceeding.
A thorough and exhaustive review of the relevant published Arizona case law has not
revealed a judicial interpretation of this aggravating circumstance at the time of the
release of this report.
xiii. The (F)(13) Aggravating Circumstance: The offense was committed in
a cold, calculated manner without pretense of moral or legal
justification.
A thorough and exhaustive review of the relevant published Arizona case law has not
revealed a judicial interpretation of this aggravating circumstance at the time of the
release of this report.

163

State v. Medina, 975 P.2d 94, 101-02 (Ariz. 1999).
Medina, 975 P.2d at 101.
165
ARIZ. REV. STAT. § 13-105(25) (2005).
166
See State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000) (noting that the defendant conceded the
existence of this aggravating circumstance at his sentencing).
164

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xiv. The (F)(14) Aggravating Circumstance: The Defendant used a remote
stun gun or an authorized remote stun gun in the commission of the
offense.
The Arizona legislature amended the capital sentencing statute in 2005 to include
Aggravating Circumstances (F)(11) through (F)(14). As of date, the courts have yet to
comment on these aggravating circumstances.
b. The Burden of Proof and Unanimity of Finding as to Statutory
Aggravating Circumstances
In order to impose a sentence of death, the jury must unanimously find that at least one
statutory aggravating circumstance has been proven beyond a reasonable doubt.167 The
burden of establishing the presence of an aggravating circumstance lies with the State.168
The proposed pattern capital jury instructions, approved in part by the Board of
Governors of the State Bar of Arizona, set forth the following in regards to the State’s
burden of proof:
Before evidence is presented, you must start with the presumption that the
alleged aggravating circumstance is not proven. The State must present
evidence to prove any alleged aggravating circumstance beyond a
reasonable doubt. The defendant is not required to testify or produce
evidence of any kind. The decision on whether to testify or produce
evidence is left to the defendant, acting with the advice of an attorney.
The defendant’s decision not to testify or produce evidence is not evidence
of the existence of any aggravating circumstance. 169
Although the Arizona Supreme Court has held that the trial judge must define
“reasonable doubt” within the context of a defendant’s guilt,170 a review of relevant case
167

ARIZ. REV. STAT. § 13-703(E) (2005).
ARIZ. REV. STAT. § 13-703(B) (2005).
169
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.4 Burden of Proof (Feb. 20, 2006)
(approved by the Board of Governors on May 20, 2005) (on file with author).
170
See State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (requiring all courts to provide jurors in all
criminal cases with the “reasonable doubt” instruction articulated by the court, effective January 1, 1996).
Except for the addition of one sentence (“This means the State must prove each element of each charge
beyond a reasonable doubt.”), the instructions defining reasonable doubt set forth below by the State Bar of
Arizona mirror the language of the Portillo Court:
168

The State has the burden of proving the defendant guilty beyond a reasonable doubt.
This means the State must prove each element of each charge beyond a reasonable doubt.
In civil cases, it is only necessary to prove that a fact is more likely true than not or that
its truth is highly probable. In criminal cases such as this, the State’s proof must be more
powerful than that. It must be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the
defendant’s guilt. There are very few things in this world that we know with absolute
certainty, and in criminal cases the law does not require proof that overcomes every
doubt. If, based on your consideration of the evidence, you are firmly convinced that the
defendant is guilty of the crime charge, you must find [him][her] guilty. If, on the other

230

law indicates that the Court has imposed no similar obligation on trial judges within the
context of proving a statutory aggravating circumstance in a capital case.171 However, in
State v. Gay, the court used the following instruction in defining “reasonable doubt”
within the context of proving a statutory aggravating circumstance:
The State has the burden of proving the existence of aggravating
circumstances beyond a reasonable doubt. In civil cases, it is only
necessary to prove that a fact is more likely true than not true, or that its
truth is highly probable. In criminal cases such as this, the [S]tate’s proof
must be more powerful than that. It must be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
that an aggravating circumstance exists. There are very few things in this
world that we know with absolute certainty, and in criminal cases the law
does not require proof that overcomes every doubt. If, based on your
consideration of the evidence, you are firmly convicted that the State has
proven an aggravating circumstance beyond a reasonable doubt, you must
find the circumstance proven. If, on the other hand, you think there is a
real possibility that an aggravating circumstance does not exist, you must
give the defendant the benefit of the doubt and find the circumstance not
proved. 172
The instructions used by the Gay court to define “proof beyond a reasonable doubt”
nearly mirror the ones found in the proposed pattern capital jury instructions. 173 The
proposed pattern instructions, however, also direct the jury that “proof beyond a
reasonable doubt” means that the “State must prove each element of each alleged
aggravating circumstance beyond a reasonable doubt.” 174
hand, you think there is a real possibility that [he][she] is not guilty, you must give
[him][her] the benefit of the doubt and find [him][her] not guilty.
REVISED ARIZONA JURY INSTRUCTIONS (Criminal) (3d ed.), Standard Criminal 5b(1), at
http://www.myazbar.org/SecComm/Committees/CRJI/crji.cfm.
171
See Portillo, 898 P.2d at 974.
172
Final Jury Instructions, Phase II, State v. Gay, CR-2001-1542, 64 (May 4, 2004).
173
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.5 Definition of Proof Beyond a
Reasonable Doubt (Feb. 20, 2006) (approved by the Board of Governors on May 20, 2005) (on file with
author).
174
Id. The exact definition proposed by the Committee is:
The State has the burden of proving any alleged aggravating circumstance beyond a
reasonable doubt. This means that the State must prove each element of each alleged
aggravating circumstance beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the
alleged aggravating circumstance is proven. There are very few things in this world that
we know with absolute certainty, and in criminal cases the law does not require proof that
overcomes every doubt. If, based on your consideration of the evidence, you are firmly
convinced that any alleged aggravating circumstance is proven, then you must make that
finding. If, on the other hand, you think there is a real possibility that the alleged
aggravating circumstance is not proven, you must give the Defendant the benefit of the
doubt and find the alleged aggravating circumstance is not proven.

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c. The Need for Statutory Aggravating Circumstance(s) to Be Set Forth in
Writing
At the conclusion of the aggravation phase, the jury must set forth in writing the statutory
aggravating circumstances, if any, proved by the State. 175 If the jury unanimously finds
the (F)(6) aggravating circumstance to exist, the jury must specify in writing whether it
“unanimously found the murders ‘cruel,’ ‘heinous,’ or ‘depraved.’” 176 Failure to
delineate the basis upon which the jury reached its decision will result in the aggravator’s
dismissal on review. 177
3. Mitigating Circumstances
Every death sentence imposed is based on two elements: (1) proof beyond a reasonable
doubt of the existence of at least one aggravating circumstance, and (2) a finding “that
there are no mitigating circumstances sufficiently substantial to call for leniency.”178
Section 13-703(G) of the A.R.S. defines mitigating circumstances as:
[A]ny factors proffered by the defendant or the [S]tate that are relevant in
determining whether to impose a sentence less than death, including any
aspect of the defendant’s character, propensities or record and any of the
circumstances of the offense. 179
While the legislature has codified five mitigating circumstances, these enumerated
mitigating circumstances are not exclusive. 180 Indeed, Arizona Courts have recognized a
myriad of non-statutory mitigators, including but not limited to, a defendant’s
cooperation with the prosecution, lack of criminal history, difficult childhood or family
history, employment history or service in the military, lack of intent to commit murder
(e.g., in the instance of a felony murder conviction), good character, educational
attainment, medical problems, and behavior while imprisoned. 181
Any instructions that restrict the mitigating evidence jurors can consider may violate the
Eighth Amendment of the U.S. Constitution. 182 The Arizona Supreme Court has
approved the “use of the precise statutory language as set forth in 13-703(G) as the
mitigation factor instruction.” 183

175

See State v. Anderson, 111 P.3d 369, 397 (Ariz. 2005); Final Instructions Phase II, State v. Andriano,
No. CR 2000-096032, 9 (filed Dec. 1, 2004 in Maricopa County).
176
Anderson, 111 P.3d at 397.
177
Id. at 398.
178
ARIZ. REV. STAT. § 13-703(E) (2005).
179
ARIZ. REV. STAT. § 13-703(G) (2005).
180
ARIZ. REV. STAT. § 13-703(G)(1)-(5) (2005).
181
Arizona Death Penalty Judicial Assistance Program, CAPITAL SENTENCING GUIDE (Winter 2005-2006)
(table of contents, available at http://www.supreme.state.az.us/courtserv/CrtProj/capsentguid/TOC.htm.
182
See Anderson, 111 P.3d at 391 (expressing approval of instructions that direct jurors not to be
“swayed, by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling”
and holding that such an instruction is not inviolate of the Eight Amendment).
183
Carreon, 107 P.3d at 915-16.

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In State v. Smith, the court defined mitigating circumstances to the jury as being:
[C]ircumstances which do not justify or excuse the offense, but which, in
fairness and mercy, may be considered as extenuating or reducing the
degree of moral culpability and punishment. Mitigating circumstances
may be any factors presented by the defendant or the [S]tate that are
relevant in determining whether to impose a sentences of less than death,
including any aspect of the defendant’s character, propensities or record
and any circumstances of the offense. 184
However, in State v. Gay, the court used the following definition:
Mitigating circumstances are any aspect of the defendant’s character,
propensities or record, or any of the circumstances of the offense relevant
to determining whether the defendant should be shown leniency.
Mitigating circumstances are not an excuse or justification for the offense
of first degree murder of which the defendant was found guilty, but are
circumstances which if found to be sufficiently substantial would lead you
to find that death is not an appropriate sentence. 185
Meanwhile, the proposed pattern capital jury instructions contain the following
definition:
Mitigating circumstances are any factors that are a basis for a life sentence
instead of a death sentence, including any sympathetic or other aspect of
the Defendant’s character, propensity, history or record, or circumstances
of the offense.
Mitigating circumstances are not an excuse or justification for the offense,
but are factors that in fairness or mercy may reduce the Defendant’s moral
culpability. 186
The instruction goes on to state that “[t]he fact that the Defendant has been convicted of
first degree murder is unrelated to the existence of mitigating circumstances. You must
give independent consideration to all of the evidence concerning mitigating
circumstances, despite the conviction[s].” 187
The proposed jury instructions also state, in a separate jury instruction on the application
of the law to the evidence, that “[m]itigating circumstances may be found from any

184

Final Jury Instructions, Penalty Phase, State v. Smith, Jr., CR 95116, 92-3 (May 27, 2004).
Final Jury Instructions, Phase III, State v. Gay, CR 2001-1542, 104 (May 18, 2004).
186
Draft Capital Case Sentencing Instructions, Penalty Phase, 2.3 Mitigation (Feb. 20, 2006) (approved by
the Board of Governors on May 20, 2005) (on file with author).
187
Id.
185

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evidence presented during the trial, during the first part of the sentencing hearing or
during the second part of the sentencing hearing.” 188
a. Interpretation of the Statutory Mitigating Circumstances
i. The (G)(1) Mitigating Circumstance: The defendant’s capacity to
appreciate the wrongfulness of his[/her] conduct or to conform
his[/her] conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to prosecution.
This mitigating circumstance requires that the defendant’s capacity either to (1)
appreciate the wrongfulness of his/her conduct, or (2) to conform his/her conduct to the
requirements of the law be significantly impaired. 189 Evidence of impairment usually is
derived from expert witness testimony. 190
A defendant’s impairment may be caused by drug or alcohol use at the time of the
offense or by chronic substance abuse. 191 “Evidence of drug ingestion or intoxication”
by a defendant, without more, does not normally constitute a mitigating circumstance,
however; 192 there must be evidence indicating that a defendant was impaired during the
commission of the murder. 193 Nor does this mitigating circumstance exist when a
defendant attempts to avoid prosecution after the murder, or the intoxication does not
appear to “overwhelm the defendant’s ability to control his[/her] physical behavior.” 194
Although mental illness may support a finding of the (G)(1) mitigator, mental illness by
itself does not. 195 A character or personality disorder generally is not “sufficient to
satisfy this statutory mitigator.” 196 Significantly, the Arizona Supreme Court has noted
that “mental impairments have a far greater mitigating effect [than personality disorders]
because they may evidence an inability of the defendant to control his conduct.” 197

188

Draft Capital Case Sentencing Instructions, Penalty Phase, 2.2 Evidence (Feb. 20, 2006) (approved by
the Board of Governors on May 20, 2005) (on file with author).
189
See State v. Stuard, 863 P.2d 881, 897 (Ariz. 1993) (finding that that the aggravating circumstances
outweighed the mitigating evidence).
190
See State v. Murdaugh, 97 P.3d 844, 860 (Ariz. 2004).
191
State v. Sansing, 77 P.3d 30, 37 (Ariz. 2003); see State v. Jones, 937 P.2d 310, 322 (Ariz. 1997)
(concluding insufficient evidence had been presented to show that defendant’s drug use constituted a
mitigating circumstance).
192
Sansing, 77 P.3d at 37.
193
State v. Carreon, 107 P.3d 900, 916 (Ariz. 2005) (noting that some sort of impairment must be shown
during the offense for a defendant’s impairment to constitute a mitigating circumstance under A.R.S. § 13703(G)(1)).
194
Sansing, 77 P.3d at 37 (quoting State v. Reinhardt, 951 P.2d 454, 466-67 (Ariz. 1997)).
195
State v. Clabourne, 983 P.2d 748, 754 (Ariz. 1999) (“To say that all persons with a mental illness are
always significantly impaired in at least one of these two specific ways is supported by neither medical
evidence nor common sense.”).
196
State v. Kayer, 984 P.2d 31, 45 (Ariz. 1999); State v. Brewer, 826 P.2d 783, 802 (Ariz. 1992).
197
Brewer, 826 P.2d at 802 (quoting State v. Walton, 769 P.2d 1017, 1034 (Ariz. 1989)). In Brewer, the
court stated that a defendant with a personality or character disorder “differ[s] in degree from a slow, dull,
brain-damaged defendant whose judgment and rationality are marginal,” i.e. an individual suffering from a
mental impairment. Id.

234

While case law requires that a causal nexus be proven between the impairment and the
capital offense, 198 the Arizona Supreme Court recently suggested that such an instruction
would be improper, especially in light of the U.S. Supreme Court’s decision in Tennard
v. Dretke. 199 In Tennard, the U.S. Supreme Court held that a defendant is not required to
establish a nexus between his/her mental capacity and the crime s/he committed in order
for his/her mental capacity to be considered “relevant mitigating evidence.” 200
ii. The (G)(2) Mitigating Circumstance: The defendant was under
unusual and substantial duress, although not such as to constitute a
defense to prosecution.
The Arizona Supreme Court has defined duress as “any illegal imprisonment, or legal
imprisonment used for an illegal purpose, or threats of bodily or other harm, or other
means amounting to or tending to coerce the will of another, and actually inducing
him[/her] to do an act contrary to his[/her] free will.” 201 In order to prove duress, a
defendant must show that s/he was “coerce[d] or induce[d]” to commit the offense
against his/her will.” 202 A defendant’s level of duress at the time of the offense must also
be “unusual and substantial.” 203
Duress also may be established where the evidence indicates that a defendant acted on the
orders of another. 204
iii. The (G)(3) Mitigating Circumstance: The defendant was legally
accountable for the conduct of another under the provisions of § 13303, but his[/her] participation was relatively minor, although not so
minor as to constitute a defense to prosecution.
This mitigating circumstance relates to cases in which a defendant’s conviction for
murder may be attenuated by the degree of his/her participation in the crime. 205 Here,
198

See State v. Murdaugh, 97 P.3d 854, 859-60 (Ariz. 2004); Sansing, 77 P.3d at 37 (“Mere evidence of
drug ingestion or intoxication, however, is insufficient to establish statutory mitigation. [ ] The defendant
must also prove a causal nexus between his drug use and the offense.”).
199
Tenndard v. Dretke, 542 U.S. 274 (2004) (holding “evidence of impaired intellectual functioning is
inherently mitigating at a penalty phase of a capital case,” regardless of whether a defendant has established
a nexus between his/her mental capacity and the offense).
200
Tenndard, 542 U.S. at 287.
201
Brewer, 826 P.2d at 803 (quoting State v. Wallace, 728 P.2d 232, 239 (Ariz. 1986)).
202
Id. at 803.
203
State v. Herrera, 850 P.2d 110, 113 (Ariz. 1993) (finding duress to be unusual and substantial where
the defendant acted on the immediate order of his father to shoot a deputy); see also State v. Clabourne,
983 P.2d 748, 755 (Ariz. 1999) (holding that the defendant’s claim that he was under “unusual or
substantial duress” failed where evidence showed that a “frightening sociopath” was the “mastermind and
influenced, and even scared” the defendant); State v. Williams, 904 P.2d 437, 454 (Ariz. 1995) (finding
that any possibility that the defendant acted under “unusual and substantial duress” ended when the victim,
acting as the initial aggressor, was disarmed).
204
See Herrera, 850 P.2d at 113 (finding duress where a son acted immediately on his father’s orders and
evidence revealed a history of physical abuse by the father).
205
Arizona Death Penalty Judicial Assistance Program, CAPITAL SENTENCING GUIDE, Minor Participation
(Winter
2005-2006),
available
at
http://www.supreme.state.az.us/courtserv/CrtProj/capsentguid/G3MinorPart.htm.

235

“participation in a crime may be considered as mitigation where a defendant
demonstrates that while [s/]he was legally accountable for the conduct of another,
his/[her] participation in the crime was relatively minor.” 206
A review of Arizona case law reveals only cases in which the courts rejected a finding of
this mitigator. For example, in State v. Anderson, the Arizona Supreme Court rejected
the defendant’s claim that his participation in a multiple homicide was minor, in light of
the facts that the defendant cut the throat of one victim, struck another victim with a
lantern, and provided the murder weapon to his accomplice. 207 In State v. Carlson, the
Court also rejected the defendant’s claim that her participation in the murder of her
mother-in law was minor. 208 The defendant, although not present at the actual killing,
“planned the murder, hired the killers, gave them money to buy gloves, provided them
with a key to [the victim’s] apartment, drove them to a place near [the victim’s]
apartment, and awaited their return.” 209
iv. The (G)(4) Mitigating Circumstance: The defendant could not
reasonably have foreseen that his[/her] conduct in the course of the
commission of the offense for which the defendant was convicted
would cause, or would create a grave risk of causing, death to another
person.
To determine if this mitigating circumstance exists, the courts employ a “reasonable
person” standard. 210 In other words, the courts will determine whether a reasonable
person “would foresee that [his/her] conduct would create a grave risk of death.” 211
Nevertheless, if a defendant intended to kill the victim or believed the victim might be
killed, Arizona courts normally will not find this mitigating circumstance to be
present. 212
v. The (G)(5) Mitigating Circumstance: The defendant’s age.
Section 13-703(G)(5) of the A.R.S. stipulates neither the age which constitutes a
mitigating circumstance nor the weight that this mitigating circumstance should be
given. 213 Arizona courts have found, however, that a defendant’s age at the time of the
206

State v. Hoskins, 14 P.3d 997, 1020 (Ariz. 2000) (rejecting the defendant’s contention that his
participation was minor).
207
State v. Anderson, 111 P.3d 369, 399 (Ariz. 2005).
208
State v. Carlson, 48 P.3d 1180, 1195-96 (Ariz. 2002).
209
Id.
210
See State v. Bolton, 896 P.2d 830, 854 (Ariz. 1995).
211
Id.
212
E.g., State v. Trostle, 951 P.2d 869, 886 (Ariz. 1997) (finding that the defendant knew the victim
“would likely be killed”); State v. Schackart, 947 P.2d 315, 329 (Ariz. 1997) (rejecting the existence of the
(G)(4) mitigator where the jury found the defendant had the “intent to kill”); Hoskins, 14 P.3d at 1020
(“[T]he defendant’s planning, deliberation, the verbal statements of intent well in advance of the crime, and
the actual murder weapon found on his person, pointed strongly to the foreseeability of the victim’s
death.”).
213
See State v. Clark, 616 P.2d 888, 897 (Ariz. 1980) (noting that the age of twenty at the time of the
murder was a mitigating circumstance, but not sufficient enough for leniency); State v. Watson, 628 P.2d
943, 947 (Ariz. 1981) (finding that the defendant’s age of twenty-one, coupled with other mitigating
circumstances, was sufficient for leniency); State v. Poland, 698 P.2d 183, 202 (Ariz. 1985) (finding that

236

offense may be a “substantial and relevant” mitigating circumstance. 214 Generally, as the
age of a defendant increases, the weight afforded this mitigating circumstance
decreases. 215 Nonetheless, courts also have found old age to constitute a mitigating
circumstance. 216
In determining the existence of this mitigating circumstance, the courts not only consider
a defendant’s age, but also the defendant’s intelligence level, maturity, involvement in
the crime, and past experience. 217
b. The Identification and Consideration of Specific Mitigating Circumstances
Neither the U.S. nor Arizona Constitutions mandate jury instructions specifying
particular mitigating factors, or details “on how to consider mitigating evidence in light
of aggravating evidence.” 218 In fact, a jury instruction simply directing the jury to make
a sentencing decision on “all the evidence” is constitutionally permissible. 219
The Arizona Supreme Court has provided that “jury instructions should focus on the
statutory requirement that a juror may not vote to impose the death penalty unless s/he
finds, in the juror’s individual opinion, that ‘there are no mitigating circumstances
sufficiently substantial to call for leniency.’” 220 In considering mitigating circumstances,
the Gay court provided the jury with the following instruction:

the defendant’s age of twenty-seven at the time of the offense, along with his behavior as a model prisoner,
were not mitigating circumstances “sufficiently substantial” to call for leniency).
214
State v. Valencia, 645 P.2d 239, 241 (Ariz. 1982) (holding that the defendant’s age of sixteen was a
mitigating circumstance “sufficiently substantial” to impose a sentence of life imprisonment); State v.
Jackson, 918 P.2d 1038, 1048 (Ariz. 1996); see also Roper v. Simmons, 543 U.S. 551 (2005) (holding the
execution of a defendant under eighteen years of age at the time of the offense is unconstitutional under the
8th and 14th Amendments of the U.S. Constitution).
215
Jackson, 918 P.2d at 1048.
216
See, e.g., State v. Nash, 694 P.2d 222, 236 (Ariz. 1985) (rejecting a defendant’s contention that his age,
sixty-seven, at the time of the offense constituted a mitigating circumstance while recognizing that old age
could be considered a mitigating circumstance); see State v. Glassel, 116 P.3d 1193 (Ariz. 2005) (finding
defendant’s age to be a mitigating factor, but it, along with other mitigation, was insufficient to call for
leniency); George K. Staropoli, Ventana Lakes Homeowner Association Murders, The Story of Richard
Glassel,
Jan.
12,
2003,
available
at
http://www.ahrc.com/new/index.php/src/news/sub/article/action/ShowMedia/id/329 (noting that Glassel
was over the age of sixty at the time of the murders).
217
See State v. Poyson, 7 P.3d 79, 89 (Ariz. 2000) (“Chronological age, however, is not the end of the
inquiry. To determine how much weight to assign the defendant’s age, we must also consider his[/her]
level of intelligence, maturity, past experience, and level of participation in the killings.”); State v. Phillips,
46 P.3d 1048, 1060-61 (Ariz. 2002) (rejecting the age of twenty as a mitigating circumstance after
considering the defendant’s “level of intelligence, maturity, participation in the murder, and criminal
history”).
218
Arizona Death Penalty Judicial Assistance Program, CAPITAL SENTENCING GUIDE, Mitigating
Circumstances
(Winter
2005-2006),
available
at
http://www.supreme.state.az.us/courtserv/CrtProj/capsentguid/MitIntro.htm.
219
Buchanan v. Angelone, 522 U.S. 269, 275-77 (1998).
220
State ex rel Thomas v. Granville, 123 P.3d 662, 666-67 (Ariz. 2005) (quoting ARIZ. REV. STAT. § 13703(E)(2005)). This statutory standard serves to “guide[] and channel[] the jurors’ discretion as they
evaluate and consider the mitigating circumstances, whether proved by the defendant or present in the
record, in determining whether death is the appropriate sentence for that particular defendant.” Id. at 667.

237

The weighing of aggravating and mitigating circumstances does not mean
a mere mechanical counting of factors on each side of an imaginary scale,
or the arbitrary assignment of weights to any of them. Each juror is free to
assign whatever value that juror deems appropriate to each and all of the
circumstances the juror has found. In weighing the various circumstances,
each juror determines, under the relevant evidence, whether the death
penalty is appropriate by considering the aggravating circumstances with
the totality of the mitigating circumstances. In reaching a reasoned
judgment about whether the death penalty is appropriate, each juror must
decide how compelling or persuasive the totality of the mitigating
circumstances are when compared against the aggravating circumstance.
Once each juror has weighed the aggravating circumstance against any
mitigating circumstance or circumstances, then each juror must determine
whether the mitigating circumstances each juror individually found are
sufficiently substantial to call for leniency in light of the aggravating
circumstance. The law does not define what is “sufficiently substantial to
call for leniency.” Each juror must determine for him or herself what is
“sufficiently substantial to call for leniency.”221
The Smith court, however, used the following instruction:
Although a final decision on a penalty of death or life in prison must be
unanimous, the determination of what circumstances are mitigating and
the weight to be given to the mitigating circumstances is for each of you to
resolve, individually, based upon all the evidence presented in both the
aggravation and penalty phases. To do this, you must individually
determine the nature and extent of mitigating circumstances. Then, in
light of all of the aggravating circumstances that have been proved to
exist, you must individually determine if the totality of the mitigating
circumstances is sufficiently substantial to call for leniency and a life
sentence. You must not weigh each mitigating circumstance against each
aggravating circumstance. 222
c. The Unanimity of Findings as to Mitigating Circumstances and Burden of
Proof
A jury is not required to reach a unanimous decision regarding mitigating
circumstances. 223 Instead, each juror may consider any mitigating circumstance(s) s/he
believes to exist in determining the defendant’s fate. 224
221

Final Jury Instructions, Phase III, State v. Gay, CR 2001-1542, 110 (May 18, 2004).
Final Instructions, Penalty Phase, State v. Smith, Jr. CR 95116, 64 (May 27, 2004).
223
ARIZ. REV. STAT. § 13-703(C) (2005); see also Granville, 123 P.3d at 666 (“A mitigating factor that
motivates one juror to vote for a sentence of life in prison may be evaluated by another juror as not having
been proved or, if proved, as not significant to the assessment of the appropriate penalty.”).
224
ARIZ. REV. STAT. § 13-703(C) (2005); see also State v. Anderson, 111 P.3d 369, 392 (Ariz. 2005)
(holding that instructions stating that “while the jury must be unanimous as to the appropriate sentence,
‘each juror may consider any mitigating circumstance found by that juror in determining the appropriate
222

238

The Arizona Supreme Court has suggested that jury instructions should center on each
juror’s “individual assessment” as to whether the “mitigation is of such quality or value
that it warrants leniency.” 225 In light of this, the Court has found that an instruction
stating, “Each of you, individually, must decide whether the mitigation that each of you,
individually, believes has been proven, is sufficiently substantial to call for a life
sentence,” is appropriate. 226
A defendant carries the burden of proving the existence of a mitigating circumstance by a
preponderance of the evidence.227 In defining the “preponderance of the evidence”
standard, the Revised Arizona Jury Instructions recommend the following instruction:
A party having the burden of proof by a preponderance of the evidence
must persuade you, by the evidence, that the claim or a fact is more
probably true than not true. This means the evidence that favors that party
outweighs the opposing evidence. 228
In practice, the Smith court instructed the jury that a “matter is proved by a
preponderance of the evidence if it is shown to be more likely true than not.” 229
Similarly, the Gay court stated that “[p]roof by a preponderance of the evidence means
the evidence presented is more likely true than not that that the mitigating circumstance
exists.” 230
The Court has explicitly rejected jury instructions stating that a defendant bears the
burden of proving by a preponderance of the evidence that the mitigation was sufficiently
substantial to call for leniency. 231
d. The Right to Allocution
A statement of allocution serves to “allow the defendant to make a mitigating statement
for the judge [or jury] to consider in determining the sentence.” 232 Although a capital
defendant has a right to provide the jury a statement of allocution in the penalty phase of
a capital trial, 233 his/her right to do so “is not absolute.” 234 If a defendant is denied an
opportunity to address the court before sentencing, s/he only will be afforded a re-

penalty’” did not amount to an instruction that “they must unanimously agree on the existence of any
particular mitigating circumstance in order to recommend a life sentence.”
225
Granville, 123 P.3d at 667.
226
Id. at 667.
227
ARIZ. REV. STAT. § 13-703(C) (2005).
228
REVISED ARIZONA JURY INSTRUCTIONS (Criminal) (3d ed.), Standard Criminal 5b(2), at
http://www.myazbar.org/SecComm/Committees/CRJI/crji.cfm.
229
Final Jury Instructions, Penalty Phase, State v. Smith, Jr. CR 95116, 92 (May 27, 2004).
230
Final Jury Instructions, Phase III, State v. Gay, CR 2001-1542, 102 (May 18, 2004).
231
Granville, 123 P.3d at 666.
232
State v. McCall, 770 P.2d 1165, 1170 (Ariz. 1989).
233
ARIZ. R. CRIM. P. 19.1(d)(7).
234
Anderson, 111 P.3d at 392 (noting that the defendant testified during the penalty phase).

239

sentencing hearing on a showing that s/he “would have added something to the mitigating
evidence already presented.” 235
e. Mercy Instructions
An instruction defining mitigation to include mercy may be permitted. 236 The Arizona
Supreme Court has found no error or “inherent conflict” to exist where the court provides
a mercy instruction along with an instruction stating that the jury “must not be influenced
by sympathy or prejudice.” 237
4. Availability and Definitions of the Sentencing Options
A defendant convicted of a capital offense in Arizona may be sentenced to death,
imprisonment for life, or imprisonment for natural life. 238 In the penalty phase of a
capital trial, the jury, however, decides only whether the death penalty will be imposed
on the defendant. 239 If the jury decides not to impose the death penalty, it is within the
discretion of the trial court judge to determine whether the defendant will receive a
sentence of imprisonment for life or imprisonment for natural life.240 In State v. Gay, the
court instructed the jurors accordingly:
In the event you decide that that the defendant should not be sentenced to
death, this court will impose one of the other two possible punishments for
first degree murder. In that event, it will solely be the responsibility of
this court to determine whether the defendant will be sentenced to life or
natural life. The jury would not decide that question. 241
Under section 13-703(A) of the A.R.S., a sentence of natural life means that the
defendant “is not eligible for commutation, parole, work furlough, work release or release
from confinement on any basis,” 242 while a sentence of life means that the defendant
must serve at least twenty-five years, if the victim was fifteen or older, or thirty-five
years, if the victim was an unborn child or under the age of fifteen. 243 Arizona law does
not require a court to instruct the jury on the definitions of “imprisonment for life” or
“imprisonment for natural life.” However, the proposed pattern capital jury instructions,
approved in part by the Board of Governors of the State Bar of Arizona, define “life
without [the] possibility of release from prison” to mean that the defendant “will never be
eligible to be released from prison for any reason for the rest of the [d]efendant’s life.”
The instructions also inform the jury that the defendant may be sentenced to “life
imprisonment without the possibility of release after 25[35] years.”

235
236
237
238
239
240
241
242
243

Id.
See State v. Carreon, 107 P.3d 900, 915 (Ariz. 2005).
Id. at 916-17.
ARIZ. REV. STAT. §§ 13-703(A); 13-703.01(A) (2005).
See ARIZ. REV. STAT. §§ 13-703(A), 13-703.01(A) (2005).
ARIZ. REV. STAT. § 13-703.01(A) (2005).
Final Jury Instructions, Phase III, State v. Gay, CR 2001-1542, 103 (May 18, 2004).
ARIZ. REV. STAT. § 13-703(A) (2005).
Id.

240

If no aggravating circumstances are found to exist during the aggravation phase, the death
penalty must be removed as a sentencing option. 244 If the jury finds one or more
aggravating circumstances to be present, a defendant still may receive a sentence of
imprisonment for life or natural life. 245 Although jury instructions to this effect are not
required under Arizona law, the proposed pattern capital jury instructions have
incorporated such instructions within the aggravation/eligibility phase of the defendant’s
sentencing hearing. 246 For instance, under the proposed instructions, a sentence of death
or life imprisonment may be imposed only if the jury finds beyond a reasonable doubt the
existence of one or more aggravating circumstances. 247 The instructions also explain that
if the State “does not prove beyond a reasonable doubt that an aggravating circumstance
exists, the judge will sentence the [d]efendant to either life imprisonment without the
possibility of release, or life imprisonment with the possibility of release after 25[35]
years.” 248
It is error, however, for the court to instruct jurors to impose a life sentence if they
“entertain[ ] ‘a doubt’” as to whether death is the appropriate sentence. 249
5. Victim Impact Evidence
a. The Purpose and Use of Victim Impact Evidence
The United States and Arizona Supreme Courts have recognized that a victim’s
characteristics and the impact of the murder are relevant in determining a defendant’s
sentence, in that they may not only indicate the “blameworthiness and culpability” of the
defendant, but also the harm caused by the defendant’s conduct. 250
The Arizona Victims’ Bill of Rights allows a victim, defined as including a family
member or lawful representative, 251 to “present evidence, information and opinions that
concern the criminal offense, the defendant, the sentence or the need for restitution at any
aggravation, mitigation, pre-sentencing or sentencing proceeding.” 252 The law also
entitles family members to be present at the court proceedings and to address the court. 253

244

ARIZ. REV. STAT. § 13-703.01(E) (2005).
ARIZ. REV. STAT. § 13-703.01(H) (2005).
246
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.1 Nature of the Hearing (Feb. 20,
2006) (approved by the Board of Governors on May 20, 2005) (on file with author). Specifically, the
proposed instructions state: “If the jury unanimously decides beyond a reasonable doubt that an aggravating
circumstance does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you
will decide whether to sentence the Defendant to life imprisonment or death.” Id.
247
Id.
248
Id.
249
State ex rel Thomas v. Granville, 123 P.3d 662, 667-68 (Ariz. 2005) (concluding that such an
instruction would amount to placing an impermissible burden of proof on the defendant—proof that death
is appropriate beyond any doubt).
250
Lynne v. Reinstein, 68 P.3d 412, 416 (Ariz. 2003); Payne v. Tennessee, 505 U.S. 808, 825-27 (1991).
251
ARIZ. REV. STAT. § 13-4401(19) (2005). Because in capital cases, the victim is dead and unable to
testify, we will use the term family member to encompass the meaning of a victim as defined under the
statute.
252
ARIZ. REV. STAT. § 13-4426(A) (2005).
253
ARIZ. REV. STAT. § 13-4426(B) (2005).
245

241

In capital cases, section 13-703.01(R) of the A.R.S. specifies that a family member has
the right to be present during court proceedings and to provide “any information that is
relevant to the proceeding” at both the aggravation and penalty phases of the trial. 254
Only during the penalty phase, however, may an individual family member provide
information to the jury about the murder victim and the impact of his/her death on the
family. 255
b. Admissibility of Victim Impact Evidence
Victim impact evidence is admissible in so far that it “is relevant in determining whether
the death penalty should be imposed.” 256 The “relevance” of victim impact evidence “is
a constitutional concept that considers whether information that may bear upon the
capital sentencing decision creates a constitutionally unacceptable risk that jurors may
impose a death sentence based upon impermissible arbitrary and emotional factors.” 257 It
is therefore a violation of a capital defendant’s constitutional right against cruel and
unusual punishment for a family member to give his/her opinion of the capital defendant
or the crime. 258 Similarly, a family member’s opinions concerning which sentence to
impose on the defendant are constitutionally irrelevant and must be precluded. 259 Family
members also are prohibited from presenting any “inflammatory or unduly prejudicial
evidence.” 260
c. Instructions Regarding Victim Impact Evidence
In State v. Gay, the court provided the jury with the following instruction in regards to
victim impact evidence:
The victim’s brother has made a statement relating to the personal
characteristics of [the victim] and the impact of her murder on her family.
This information is not a new aggravating circumstance and you cannot
consider it as such. Just as the law allows you to see the defendant as a
unique person and to see the loss that will result from his execution, the
law also allows you to see the murder victim as a unique person and to see
the loss resulting from her murder. You are to consider this information
only for this limited purpose. 261

254

ARIZ. REV. STAT. § 13-703.01(R) (2005).
Id. The victim impact statement may be oral or written.
256
Lynne, 68 P.3d at 416.
257
Id. at 417 n.5.
258
Id. at 416-17.
259
Lynne, 68 P.3d at 414; Glassel, 116 P.3d at 1214.
260
State v. ex rel. Thomas v. Foreman, 118 P.3d 1117, 1121 (Ariz. Ct. App. 2005). In cases where the
victim impact evidence is “so unduly prejudicial that it renders the trial fundamentally unfair,” the
defendant may seek relief under the Due Process Clause of the Fourteenth Amendment. Glassel, 116 P.3d
at 1214
261
Final Jury Instructions, Penalty Phase, State v. Smith, CR 95116, 95 (May 27, 2004).
255

242

6. The Awesome Power to Decide Between Life and Death
Although the Arizona Supreme Court has recognized that the imposition of a death
sentence is an awesome power, it has not mandated that jurors specifically be instructed
about it. 262
7. Instructions After Jury Deliberations Have Commenced
a. The Arizona Rules of Criminal Procedure
Under Rule 22.3, the court may provide additional instructions to the jury, once the jury
has retired to begin deliberations. 263 In order to do so, a request from either the jury or a
party must have been received, and notice of the court’s intention to give additional
instructions must be afforded to the parties. 264
If the jury finds itself at an impasse, the court may, “in the presence of counsel, inquire of
the jurors to determine whether and how court and counsel can assist them in their
deliberative process.” 265 To ensure the court’s inquiry is not “coercive, suggestive or
unduly intrusive,” the Rules of Criminal Procedure suggest the following inquiry by the
court:
This instruction is offered to help your deliberations, not to force you to
reach a verdict as a result of this procedure.
You may wish to identify areas of agreement and areas of disagreement.
You may then wish to discuss the law and the evidence as they relate to
areas of disagreement.
If you still have disagreement, you may wish to identify for the court and
counsel which issues or questions of law or fact you would like counsel or
court to assist you with. If you elect this option, please list in writing the
issues where further assistance might help bring about a verdict.
I do not wish or intend to force a verdict. We are merely trying to be
responsive to your apparent need for help. If it is reasonably probable that
you could reach a verdict as a result of this procedure, it would be wise to
give it a try. 266
b.

The Allen Charge

The U.S. Supreme Court, in Allen v. United States, 267 authorized judges to provide
additional instructions to jurors after judges have rendered the main charge to the jury
262
263
264
265
266
267

See State v. Nash, 694 P.2d 222, 232 (Ariz. 1985).
ARIZ. R. CRIM. P. 22.3.
Id.
ARIZ. R. CRIM. P. 22.4.
ARIZ. R. CRIM. P. 22.4 cmt.
Allen v. United States, 164 U.S. 492, 501 (1896).

243

and jury deliberations have begun. 268 The Court upheld for that purpose the following
instruction, which is known as the Allen charge:
[I]n substance, that in a large proportion of cases absolute certainty
could not be expected; that although the verdict must be the verdict
of each individual juror, and not a mere acquiescence in the
conclusion of his fellows, yet they should examine the question
submitted with candor and with a proper regard and deference to
the opinions of each other; that it was their duty to decide the case
if they could conscientiously do so; that they should listen, with a
disposition to be convinced, to each other's arguments; that, if
much the larger number were for conviction, a dissenting juror
should consider whether his doubt was a reasonable one which
made no impression upon the minds of so many men, equally
honest, equally intelligent with himself. If, upon the other hand,
the majority was for acquittal, the minority ought to ask
themselves whether they might not reasonably doubt the
correctness of a judgment which was not concurred in by the
majority. 269
c. Use of the Allen Charge and Permissible Instructions After the Jury Has
Been Deliberating for an Extended Period of Time
A review of Arizona case law reveals only one instance in which the propriety of the
Allen charge was examined. In State v. Dunlap, the Arizona Court of Appeals, while
recognizing that each defendant is entitled to receive “a fair trial at the hands of an
independent jury, the members of which were free from intimidation or undue pressure,”
concluded that the Allen charge did not coerce the guilty verdicts. 270 In determining if
the jury charge was coercive, the court questioned whether “under totality of the
circumstances, the trial court’s actions or remarks displaced the independent judgment of
the jurors.” 271
In Dunlap, the court also rejected the defendant’s claims that a supplemental instruction
provided to the deadlocked jury mandated reversal of the defendant’s conviction. 272 To
aid in the jury’s deliberation, the trial court stated:
It is desirable if you can reasonably agree upon a verdict. For the parties
involved in the case it is an important one, and there is no reason to
believe that the case could ever be submitted to a jury more competent to
decide it.” 273

268

See id.
See Id.
270
State v. Dunlap, 930 P.2d 518, 541 (Ariz. Ct. App. 1996) (quoting State v. Lautzenheiser, 881 P.2d
339, 341 (Ariz. 1994)).
271
Id.
272
Id. at 541-42.
273
Id.
269

244

Although the court acknowledged that such an instruction should not have been given
and had been disapproved of by prior courts, it concluded that the instruction “did not
impermissibly pressure jurors to reach a verdict or deny [the] defendant a fair trial by an
independent jury.” 274
The Arizona Supreme Court has held that the “test for coerciveness is whether the trial
court’s actions or remarks, viewed in the totality of the circumstances, displaced the
independent judgment of the jurors.” 275
8. Form of Instructions
Under Arizona’s Rules of Criminal Procedure, each juror must receive a written copy of
the court’s preliminary and final instructions on the law before the court reads the
instructions. 276 When the jury retires to deliberate, each juror must also take with
him/her (1) a verdict form, (2) written or recorded 277 copies of the jury instructions, (3)
any notes, and (4) any “such tangible evidence as the court in its discretion shall
direct.” 278

274

Id. at 542.
See State v. Jackson, 918 P.2d 1038, 1046 (Ariz. 1996) (finding no jury coercion).
276
ARIZ. R. CRIM P. 21.3(d).
277
Id. Courts of limited jurisdiction also may provide audio-taped instructions to the jury for use during
deliberations.
278
ARIZ. R. CRIM. P. 22.2(a)-(d).
275

245

II. ANALYSIS
A. Recommendation #1
Each capital punishment jurisdiction should work with attorneys, judges,
linguists, social scientists, psychologists, and jurors themselves to evaluate
the extent to which jurors understand capital jury instructions, revise the
instructions as necessary to ensure that jurors understand applicable law,
and monitor the extent to which jurors understand the revised instructions
to permit further revision as necessary.

Pattern capital jury instructions currently do not exist in Arizona. Although the Criminal
Jury Instruction Committee of the Arizona State Bar is working to draft and promulgate
capital pattern jury instructions by October 2006, the Committee is composed entirely of
attorneys and judges, and to the best of our knowledge, is not working with linguists,
social scientists, psychologists, or jurors to (1) evaluate the extent to which jurors
understand capital jury instructions; (2) ensure that jurors understand applicable law; and
(3) monitor the extent to which jurors understand the instructions to permit further
revision as necessary.
In 1993, however, the Arizona Supreme Court, wishing to address “the lack of
[representation] in an increasingly diverse society, enforced juror passivity during trials
and unacceptably low levels of juror comprehension of the evidence and the court’s
instructions” established the Committee on More Effective Use of Juries, which included
attorneys, judges, former jurors, as well as academics in the fields of psychology and
anthropology. 279 To ensure jurors better understood the applicable law in each case, the
Committee on More Effective Use of Juries, in its report entitled Jurors: The Power of
12, recommended that preliminary jury instructions should be expanded to include
elements of the charge and any defenses, be case-specific, and be in plain English. 280
Although the Committee reconvened in 1996 to consider additional issues, none
specifically touched on the issues highlighted in Recommendation #1. 281 To the best of
our knowledge, the Committee has not reconvened since 1996 to address the changes
spurred by Ring v. Arizona. 282
The State of Arizona, therefore, fails to comply with Recommendation #1.

279

Ariz. Supreme Court Committee on More Effective Use of Juries, Jurors: The Power of Twelve, at
Introduction (1944), available at http://www.supreme.state.az.us/jury/Jury/jury.htm.
280
Id. at 30.
281
Ariz. Supreme Court Committee on More Effective Use of Juries, Jurors: The Power of Twelve, Part 2
(1998), available at http://www.supreme.state.az.us/jury/Jury2/jury2.htm.
282
It also is important to note that in 2001, the Arizona Supreme Court Ad Hoc Committee to Study Jury
Practices and Procedures was created by the administrative order of the Chief Justice. The scope of the Ad
Hoc’s Committee mandate though was limited predominantly to the court administrative process and not
tailored to address the issues raised within this Recommendation. See ARIZ. SUP. CT. AD HOC COMMITTEE
TO STUDY JURY PRACTICES AND PROCEDURES, FINAL REPORT AND RECOMMENDATIONS, 1,2 (Aug. 2002).

246

B. Recommendation #2
Jurors should receive written copies of “court instructions” (referring to the
judge’s entire oral charge) to consult while the court is instructing them and
while conducting deliberations.

This recommendation is supported by a myriad of studies finding that jurors provided
with written court instructions pose fewer questions during deliberations, express less
confusion about the instructions, use less time trying to decipher the meaning of the
instructions, and spend less time inappropriately applying the law. 283
Written
instructions, therefore, result in more efficient and worthwhile deliberations. 284
Under the Arizona Rules of Criminal Procedure, each juror must receive a copy of the
court’s preliminary and final instructions on the law before such instructions are read by
the court. 285 Jurors must also have a copy of the instructions while in deliberations. 286
Because Arizona courts are required to provide capital jurors with written copies of the
court’s instructions while charging the jury and during juror deliberations, the State of
Arizona meets Recommendation #2.
C. Recommendation #3
Trial courts should respond meaningfully to jurors’ requests for
clarification of instructions by explaining the legal concepts at issue and
meanings of words that may have different meanings in everyday usage and,
where appropriate, by directly answering jurors’ questions about applicable
law.

Capital jurors commonly have difficulty understanding jury instructions. 287 This can be
attributed to a number of factors, including, but not limited to, the length of the
instructions, the use of complex legal concepts and unfamiliar words without proper
Given that jurors have difficulty
explanation, and insufficient definitions. 288
283

The Hon. B. Michael Dann, ‘Lessons Learned’ and ‘Speaking Rights’: Creating Educated and
Democratic Juries, 68 IND. L. J. 1229, 1259 (1993); Judge Roger M. Young, Using Social Science to
Assess the Need for Jury Reform in South Carolina, 52 S.C. L. Rev. 135. 177, 178 (2000) (noting that
69.0% of the judges polled thought that juror comprehension would be aided by giving written instructions
after the judge charged the jury and most believed that it would aid juror comprehension to have the
instructions with them during deliberations).
284
Dann, supra note 283, at 1259; Young, supra note 283, at 162-63.
285
ARIZ. R. CRIM. PROC. 21.3(d).
286
See ARIZ. R. CRIM. P. 21.1; ARIZ. R. CIV. P. 51(b)(3).
287
Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J.
CRIM. L. & CRIMINOLOGY 532, 549-551 (1994) (discussing juror comprehension, or lack thereof, of jury
instructions); Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and
Testing Jury Instructions, 79 JUDICATURE 224, 225 (1996); Theodore Eisenberg & Martin T. Wells, Deadly
Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1, 12-15 (1993) (focusing on South
Carolina capital juries understanding or misunderstanding of jury instructions).
288
James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?,
70 IND. L. J. 1161, 1169-1170 (1995); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors
Understand Mitigation?, 1995 UTAH L. REV. 1, 7 (1995) (discussing jurors understanding of the concept of

247

understanding jury instructions, judges should respond meaningfully to jurors’ requests
for clarification of the instructions to ensure juror comprehension of the applicable law.
Under Arizona law, trial courts have the discretion to provide jurors with additional
instructions upon a juror’s request. 289
The Arizona Supreme Court’s Committee on More Effective Use of Jurors highlighted
this problem in Arizona more than a decade ago in its first report, Jurors: The Power of
12. 290 In proposing a solution, the Committee recommended that final jury instructions
state that any written questions about the final instructions are welcome before and
during deliberations. 291 The Committee, recognizing the “failure of too many judges to
fully and fairly respond to questions” from the jury, also urged trial judges to deal fully
and fairly with a jury’s questions and recommended that judges receive instructions on
how to do so. 292
To the best of our knowledge, however, none of these
recommendations have been adopted by the State of Arizona.
More recently, in 2002, the Arizona Capital Case Commission expressed concerns
regarding the ambiguity of the (F)(6) statutory aggravating circumstance (a murder
committed in an “especially cruel, heinous or depraved manner”). 293 Although in Walton
v. Arizona, 294 the U.S. Supreme Court held the (F)(6) aggravating circumstance to be
facially vague, the Court concluded that enough substance had been provided to the
statute’s “operative terms” to render it constitutional. 295 The Capital Case Commission,
noting that the (F)(6) aggravator was the mostly commonly found aggravator prior to the
U.S. Supreme Court’s decision in Ring v. Arizona, 296 highlighted the need to define and
narrow this aggravating circumstance since its determination now rests with a jury and
not a judge. 297 Given the inherent vagueness of this aggravating circumstance, it is of
utmost importance that the State of Arizona adopt a uniform and specific definition of
this aggravating circumstance when instructing jurors during the penalty phase of a
capital trial. Currently, the courts, in determining the constitutionality of jury instructions
used to explain this aggravating circumstance, require the instructions to contain
“essential narrowing factors” and provide “specificity and direction” to the jury,298 but do
not mandate that a uniform and specific definition be used.
Despite a need to clarify confusion among capital jurors, we have been unable to
determine whether courts are exercising their discretion to respond meaningfully to juror
questions in practice. We are, therefore, unable to ascertain whether the State of Arizona
meets Recommendation #3.
mitigation evidence, including the scope, applicable burden of proof, and the required number of jurors
necessary to find the existence of a mitigating factor).
289
ARIZ. R. CRIM. P. 22.3; see State v. Stevens 909 P.2d 478 (Ariz. Ct. App. 1995).
290
See supra note 279.
291
Id.
292
Id.
293
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 30 (Dec. 2002).
294
497 U.S. 639 (1990).
295
Id. at 654. Since Ring, which mandated the jury to find aggravating circumstances, the Court has
continued to reject vagueness challenges. See State v. Anderson, 111 P.3d 369, 394-95 (Ariz. 2005).
296
Ring v. Arizona, 536 U.S. 584 (2002).
297
See supra note 293.
298
State v. Cromwell, 119 P.3d 448, 456 (Ariz. 2005).

248

D. Recommendation #4
Trial courts should instruct jurors clearly on applicable law in the
jurisdiction concerning alternative punishments and should, at the
defendant’s request during the sentencing phase of a capital trial, permit
parole officials or other knowledgeable witnesses to testify about parole
practices in the state to clarify jurors’ understanding of alternative
sentences.

Recommendation #4 is composed of two parts. The first part requires judges to provide
clear jury instructions on alternative punishments; the second requires judges to provide
instructions and allow the introduction of evidence on parole practices, including witness
testimony, upon the defendant’s request.
1. Alternative Punishments
Under section 13-703(A) of the A.R.S., a defendant convicted of a capital offense may be
sentenced to death, imprisonment for life, or imprisonment for natural life.299 Arizona
law does not require a court to instruct the jury on the definitions of “imprisonment for
life” or “imprisonment for natural life,” however. The proposed pattern capital jury
instructions, approved in part by the Board of Governors of the State Bar of Arizona, do
define “life without [the] possibility of release from prison” to mean that the defendant
“will never be eligible to be released from prison for any reason for the rest of the
[d]efendant’s life.” The instructions also inform the jury that the defendant may be
sentenced to “life imprisonment without the possibility of release after 25[35] years.”
In addition, beyond not requiring that alternative sentences be defined for the jury, in at
least one case, the court went beyond not defining the sentencing options and did not
instruct on the existence of one of the three potential sentencing options. In State v.
Smith, a copy of the preliminary instructions given to the jury during the aggravation
phase specified only two sentencing options—death or a sentence of life without the
possibility of release until at least 25 years have been served”—and failed to mention the
possibility of sentencing the defendant to imprisonment for natural life, with no
possibility of parole. 300 The final instructions provided in the aggravation phase of Smith
failed to mention the defendant’s sentencing options at all. 301
2. Parole Practices
While studies consistently have shown that capital jurors underestimate the total number
of years defendants convicted of capital murder, but not sentenced to death spend in

299

ARIZ. REV. STAT. §§ 13-703(A); 13-703.01(A) (2005).
See Preliminary Instructions, Aggravation Phase, State v. Smith, Jr., CR 95116, (May 17, 2004). The
Preliminary Instructions for the Aggravation Phase read: “In referring to the nature of the sentencing
hearing, the court states: ‘Because the defendant has been convicted of the crime of first-degree murder,
under Arizona law applicable to this case the defendant is subject to being punished by either death or
imprisonment for life without the possibility of release until at least 25 calendar years have been served.’”
301
See Final Instructions, Aggravation Phase, State v. Smith, Jr., CR 95116 (May 18, 2004).
300

249

prison, 302 Arizona law does not, to the best of our knowledge, allow parole officials or
other knowledgeable witnesses to testify about parole practices to clarify jurors’
understanding of alternative sentences.
In order to enable capital jurors to make informed sentencing decisions, the State of
Arizona should ensure that the pattern jury instructions include and define “imprisonment
for life” as well as “imprisonment for natural life,” and permit parole testimony when
necessary to clarify a jury’s understanding of these alternative sentences.
Based on the foregoing, the State of Arizona fails to comply with Recommendation #4.
E. Recommendation #5
Trial courts should instruct jurors that a juror may return a life sentence,
even in the absence of any mitigating factor and even where an aggravating
factor has been established beyond a reasonable doubt, if the juror does not
believe that the defendant should receive the death penalty.

Arizona law does not require an instruction stating that the jury may impose a life
sentence, even in the absence of any mitigating factor and even where an aggravating
factor has been established beyond a reasonable doubt, if the juror does not believe that
the defendant should receive the death penalty. A review of Arizona case law also did
not reveal any instances in which this instruction was used by the courts. Instead, the
Arizona Supreme Court has instructed that “jury instructions should focus on the
statutory requirement that a juror may not vote to impose the death penalty unless s/he
finds, in the juror’s individual opinion, that ‘there are no mitigating circumstances
sufficiently substantial to call for leniency.’” 303 A juror could consequently fail to
understand that s/he could choose to vote against a sentence of death, even in the absence
of mitigation evidence.
The State of Arizona, therefore, fails to comply with Recommendation #5.
F. Recommendation #6
Trial courts should instruct jurors that residual doubt about the defendant’s
guilt is a mitigating factor. Further, jurisdictions should implement
provision of Model Penal Code Section 210.6(1)(f), under which residual
doubt concerning the defendant’s guilt would, by law, require a sentence less
than death.

302

William J. Bowers & Benjamin D. Steiner, Death By Default: An Empirical Demonstration of False
and Forced Choices in Capital Sentencing, 77 TEX. L. REV. 605, 645 (1999); William J. Bowers & Wanda
D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39
CRIM. L. BULL. 51,80 (2003); William J. Bowers, The Capital Jury: Is it Titled Toward Death, 79
JUDICATURE 220, 221-22 (1996).
303
State ex rel Thomas v. Granville, 123 P.3d 662, 666-67 (Ariz. 2005) (quoting ARIZ. REV. STAT. § 13703(E)). This statutory standard serves to “guide[] and channel[] the jurors’ discretion as they evaluate and
consider the mitigating circumstances, whether proved by the defendant or present in the record, in
determining whether death is the appropriate sentence for that particular defendant.”

250

The State of Arizona does not require judges to instruct jurors that residual doubt
concerning the defendant’s guilt is a mitigating circumstance nor does it have a state law
requiring the imposition of a sentence less than death in cases in which residual doubt
concerning the defendant’s guilt is present.
As previously discussed, Arizona has no pattern capital jury instructions. Section 13703(G) of the A.R.S., however, allows jurors to consider any facts “relevant in
determining whether to impose a sentence less than death.” In at least one case, Arizona
courts have included residual doubt in the list of mitigating circumstances it presented to
the jury in its jury instructions. 304 The Court has cast doubt on the validity of residual
doubt as a mitigating factor, however, by stating that “[d]uring the aggravation and
penalty phases, a juror may not revisit its initial guilty verdict.” 305
Significantly, in December 2002, the Capital Case Commission recommended that
residual doubt not be added to the list of statutory mitigating circumstances outlined in
section 13-703(G) of the A.R.S. 306 The Commission’s recommendation was made
“largely because the strength of the government’s proof of guilt may already be
considered during the sentencing phase of a capital case.” 307
The State of Arizona, therefore, is not in compliance with Recommendation #6.
G. Recommendation #7
In states where it is applicable, trial courts should make clear in juror
instructions that the weighing process for considering aggravating and
mitigating factors should not be conducted by determining whether there
are a greater number of aggravating factors than mitigating factors.

Under section 13-703(E) of the A.R.S., a sentence of death must be imposed if the jury
finds the existence of one or more statutory aggravating circumstance(s), and then
concludes that “there are no mitigating circumstances sufficiently substantial to call for
leniency.” 308 This section, as interpreted by the Arizona. Supreme Court, “read most
naturally, [ ] requires the [jury] to weigh aggravating and mitigating circumstances—to
determine the relative ‘substan[ce]’ of the two kinds of factors.” 309
While there are not yet criminal pattern jury instructions for capital cases, in at least one
case, State v. Granville, the court did provide instructions clarifying the method by which
jurors should consider aggravating and mitigating factors. 310 There, the jury instructions
addressing the “sufficiently substantial to call for leniency” standard of section 13703(G) read:
304

See State v. Carreon, 107 P.3d 900, 915 (Ariz. 2005) (instructing mitigation to include residual doubt).
State v. Anderson, 111 P.3d 369, 390 (Ariz. 2005) (holding that a defendant is not constitutionally
entitled to have aggravation and penalty issues decided by the same jury that decided guilt).
306
See supra note 293, at 1, 21.
307
Id. at 20.
308
ARIZ. REV. STAT. § 13-703(E) (2005).
309
See State v. Barreras, 892 P.2d 852, 857 (Ariz. 1995) (quoting Richmond v. Lewis 506 U.S. 40, 47
(1992)).
310
See State v. Granville, 123 P.3d 662, 667 (Ariz. 2005).
305

251

In deciding whether the defendant should be sentenced to death or life in
prison, you must weigh the mitigating circumstances that have been
proven to you against the aggravating factor that you have already found,
and determine whether there is mitigation that is sufficiently substantial to
call for life in prison. . .
The weighing of aggravating and mitigating circumstances does not mean
a mere mechanical counting of factors on each side of an imaginary
scale. 311
Out of a concern that “weighing” language could “confuse or mislead jurors,” 312 the
Arizona Supreme Court has discouraged the use of jury instructions which employ an
instruction that “mitigating circumstances must ‘outweigh’ aggravating factors for life to
be the appropriate sentence” and concluded instead that:
[J]ury instructions should focus on the statutory requirement that a juror
may not vote to impose the death penalty unless he or she finds, in the
juror’s individual opinion, that “there are no mitigating circumstances
sufficiently substantial to call for leniency.” In other words, each juror
must determine whether, in that juror’s individual assessment, the
mitigation is of such quality or value that it warrants leniency. 313
To ensure that all defendants are accorded fair sentencing hearings, the State of Arizona
should adopt capital pattern jury instructions clarifying that the death penalty should not
be imposed merely because the number of aggravating circumstances found exceeds the
number of mitigating circumstances.
Although the State of Arizona does not have a pattern jury instruction on this issue and
the Arizona Supreme Court does not require clarifying language, the Arizona Supreme
Court has acknowledged the issue of potential juror confusion and has suggested that
judges move away from an instruction that mitigating circumstances must “outweigh”
aggravating factors for life to be the appropriate sentence. Consequently, the State of
Arizona is in partial compliance with Recommendation #7.

311
312
313

Id. at 668 (appendix).
Id. at 667.
Id.

252

CHAPTER ELEVEN
JUDICIAL INDEPENDENCE
INTRODUCTION TO THE ISSUE
Our criminal justice system relies on the independence of the Judicial Branch to ensure
that judges decide cases to the best of their abilities without political or other bias and
notwithstanding official and public pressure. However, judicial independence is
increasingly being undermined by judicial elections, appointments and confirmation
proceedings that are affected by nominees or candidates' purported views on the death
penalty or by judges' decisions in capital cases.
During judicial election campaigns, voters often expect candidates to assure them that
they will be “tough on crime,” that they will impose the death penalty whenever possible,
and that, if they are or are to be appellate judges, they will uphold death sentences. In
retention campaigns, judges are asked to defend decisions in capital cases and sometimes
are defeated because of decisions that are unpopular, even where these decisions are
reasonable or binding applications of the law or reflect the predominant view of the
Constitution. Prospective and actual nominees for judicial appointments often are
subjected to scrutiny on these same bases. Generally, when this occurs, the discourse is
not about the Constitutional doctrine in the case but rather about the specifics of the
crime.
All of this increases the possibility that judges will decide cases not on the basis of their
best understanding of the law, but rather on the basis of how their decisions might affect
their careers, and makes it less likely that judges will be vigilant against prosecutorial
misconduct and incompetent representation by defense counsel. For these reasons,
judges must be cognizant of their obligation to take corrective measures both to remedy
the harms of prosecutorial misconduct and defense counsel incompetence and to prevent
such harms in the future.

253

I. FACTUAL DISCUSSION
A. Selection of Judges
The judicial selection process in Arizona reflects a blend of two systems: merit-based
appointments and non-partisan elections. All Arizona Supreme Court justices, Court of
Appeals judges, and Superior Court judges from counties with a population of 250,000 or
more are selected on the basis of merit by the Governor, who, in turn, bases his/her
appointments upon the recommendations of a nominating commission. 1 Superior Court
judges from counties with a population of fewer than 250,000 people, however, are
selected in non-partisan elections. 2 To serve additional terms, all Arizona state court
judges are subject to unopposed retention elections or general re-elections. 3
1. The Arizona Supreme Court and the Court of Appeals
All Arizona Supreme Court justices and Court of Appeals judges are appointed by the
Governor from a list of candidates compiled by the Commission on Appellate Court
Appointments (CACA). 4 CACA is composed of sixteen Governor-appointed members:
the Chief Justice of the Arizona Supreme Court (who serves as Chair), five attorneys, 5
and ten non-attorneys. 6 For each judicial vacancy, CACA must nominate at least three
individuals. 7 Only two of the three nominees may share the same political affiliation,
unless CACA submits four or more nominees to the Governor, in which case no more
than sixty percent of the nominees may share the same political affiliation. 8
Before submitting its list of judicial nominees, CACA is obligated to “conduct
investigations, hold public hearings and take public testimony.”9 CACA’s decision about
nominees must be made in a public forum and, while CACA must consider the diversity
of the State’s population, its principal consideration must be merit. 10 Similarly, while the
Governor must base his/her selection primarily on a candidate’s merit, s/he still must take
into consideration the diversity reflected in Arizona’s population. 11
If CACA fails to submit its nominees to the Governor within sixty days of a judicial
vacancy, the Governor retains authority to appoint any qualified person until CACA
provides the Governor with its nominees. 12 Alternatively, if the Governor fails to appoint
a nominee within sixty days of CACA’s submission, responsibility for filling the judicial
1

ARIZ. CONST. art. 6, § 37(A), (B).
ARIZ. CONST. art. 6, § 12(A).
3
ARIZ. CONST. art. 6, § 38.
4
ARIZ. CONST. art. 6, § 37(A).
5
The Board of Governors of the State Bar of Arizona nominates the five attorneys who are then
appointed by the Governor “with the advice and consent of the senate in the manner prescribed by law.”
ARIZ. CONST. art. 6, § 36(A), para. 1.
6
The Governor also appoints the non-attorney members “with the advice and consent of the senate in
the manner prescribed by law.” Id.
7
ARIZ. CONST. art. 6, § 37(A).
8
Id.
9
ARIZ. CONST. art. 6, § 36(D).
10
Id.
11
ARIZ. CONST. art. 6, § 37(C).
12
Id.
2

254

vacancy shifts to the Chief Justice of the Arizona Supreme Court. 13 When making the
appointment, the Chief Justice’s sole consideration must be the candidate’s merit. 14
Once appointed, justices of the Arizona Supreme Court and judges of the Arizona Court
of Appeals initially serve a term “ending sixty days following the next regular general
election after the expiration of a term of two years in office.” 15 If a justice or judge
wishes to retain his/her seat beyond the initial term, s/he must file a declaration of this
desire with the Office of the Secretary of State between sixty and ninety days before the
general election prior to the end of his/her term. 16 At the general election, the judge’s
name will appear on the ballot without any partisan designation. 17 If a majority votes to
retain the judge or justice, s/he will serve a term of six years. 18 If a majority votes
against retaining the justice or judge or s/he simply fails to file a declaration, however,
his/her office will become vacant. 19
2. The Superior Courts
The method used to select Arizona Superior Court judges depends on the population of
each county. Counties with 250,000 or more people as of the most recent U.S. Census
are constitutionally mandated to follow nearly the same judicial selection process as the
Arizona Supreme Court and the Court of Appeals– merit-based elections, followed by
retention elections. 20 Presently, the only Arizona counties that meet this population
threshold are Maricopa and Pima counties. 21 In contrast, counties with fewer than
250,000 people are constitutionally mandated to hold non-partisan elections to select
Superior Court judges. 22
a. Counties with Populations of 250,000 or More: The Maricopa County and
Pima County Superior Courts
All Superior Court judges for Maricopa and Pima counties are appointed by the Governor
from a list of candidates compiled by either the Maricopa County Commission on Trial
Court Appointments or the Pima County Commission on Trial Court Appointments (the
commission(s)). 23 Like CACA, each commission consists of sixteen governor-appointed
members: the Arizona Supreme Court Chief Justice, 24 five attorneys, 25 and ten non-

13

Id.
Id.
15
Id.
16
ARIZ. CONST. art. 6, § 38(A).
17
ARIZ. CONST. art. 6, § 38(B).
18
ARIZ. CONST. art. 6, § 38(C); ARIZ. CONST. art. 6, § 4; ARIZ. REV. STAT. 12-120.01(B) (2005).
19
ARIZ. CONST. art. 6, § 38(C), (E).
20
See ARIZ. CONST. art. 6, § 37(B); ARIZ. CONST. art. 6, § 41(A)-(L).
21
See ARIZ. CONST. art. 6, § 37(B); ARIZ. CONST. art. 6, § 41(A)-(L).
22
ARIZ. CONST. art. 6, § 12(A).
23
See ARIZ. CONST. art. 6, § 41(B).
24
The Arizona Supreme Court Chief Justice serves as Chair. ARIZ. CONST. art. 6, § 41(B), para. 1.
25
The State Board of Governors of the State Bar of Arizona nominates the five attorneys appointed by
the Governor “subject to confirmation by the senate in the manner prescribed by law.” ARIZ. CONST. art. 6,
§ 41(B), para. 2. No more than three attorneys may be of the same political party. Id.
14

255

attorneys 26 and must provide at least three judicial nominees to the Governor after
“conduct[ing] investigations, hold[ing] public hearings and tak[ing] public testimony.” 27
In selecting nominees, the commissions must focus primarily on merit, but also must
consider the diversity of each county’s population and the “geographical distributions of
the residences of the judges throughout the county.” 28 The Governor too must base
his/her selection of a Superior Court judge on the candidate’s merit, while considering the
diversity of the county. 29
If the Governor does not receive the commission nominations within sixty days of the
judicial vacancy, the Governor has the authority to appoint a qualified individual until
their receipt. 30 Alternatively, if the Governor fails to appoint a nominee within sixty days
of a commission’s submission, the Chief Justice of the Arizona Supreme Court must
immediately appoint a judge. 31 In making the appointment, the Chief Justice’s sole
consideration must be the candidate’s merit. 32 Once appointed, Superior Court judges in
Maricopa and Pima counties initially serve for a term “ending sixty days following the
next regular general election after the expiration of a term of two years in office.” 33
If a Maricopa or Pima county Superior Court judge wishes to serve another term, s/he
must file a declaration of his/her “desire to be retained in office” in the Office of the
Clerk of the Board of Supervisors of the respective county between sixty and ninety days
before the general election prior to the end of his/her term. 34 At the next regular general
election, the judge’s name will appear on the ballot without a political designation. 35 If a
majority votes in favor of retaining the judge, s/he will serve a term of four years.36 If a
majority votes against retaining the judge or the judge fails to file a declaration, his/her
seat will become vacant. 37
b. Counties with Populations of Fewer than 250,000
Superior Court judges in counties with fewer than 250,000 people must be elected in nonpartisan county general elections. 38 Elected Superior Court judges serve a term of four
years. 39 If a judicial vacancy arises prior to the expiration of a term of office, the

26

ARIZ. CONST. art. 6, § 41(B), para 3. No more than two non-attorney members can “reside in the same
supervisorial district.” Id.
27
ARIZ. CONST. art. 6, § 41(I), (J). Again, only two of the three nominees may share the same political
affiliation unless the commission submits at least four nominees, in which case no more than 60% of the
nominees may share the same political affiliation. See ARIZ. CONST. art. 6, § 37(B), § 41(I).
28
ARIZ. CONST. art. 6, § 41(J).
29
ARIZ. CONST. art. 6, § 37(C ).
30
Id.
31
Id..
32
Id..
33
Id.
34
ARIZ. CONST. art. 6, § 38(A).
35
ARIZ. CONST. art. 6, § 38(B).
36
ARIZ. CONST. art. 6, § 12(B); ARIZ. CONST. art. 6, § 38(C).
37
ARIZ. CONST. art. 6, § 38 (C), (E).
38
ARIZ. CONST. art. 6, § 12(A).
39
Id.

256

Governor has the authority to appoint a new judge “until the election and qualification of
a successor.” 40
Counties with fewer than 250,000 people also are constitutionally permitted to select
Superior Court judges in the same manner as counties with populations of 250,000 or
more, 41 but a county first must vote in favor of this judicial selection process. 42 As of
yet, no Arizona county has chosen to do so.
3. Constitutionally Mandated Performance Evaluations
In 1992, the Arizona Constitution was amended to mandate a process for evaluating
merit-selected justices and judges who are subject to retention elections. 43 The following
year, the Arizona Supreme Court established the Commission on Judicial Performance
Review (CJPR) to administer the evaluation process. 44 The CJPR, presently a twentynine-member commission, 45 is responsible for creating performance standards and
conducting performance reviews. 46 To do this, the CJPR surveys jurors, attorneys,
litigants, witnesses, personnel, and others with personal knowledge of the justice or
judge’s performance, and the CJPR solicits public comments. 47 Various media outlets
and the Secretary of State disseminate the results of the evaluation state-wide. 48
In addition, the CJPR administers a self-improvement program for judges and justices. 49
As part of this program, justices and judges provide information relating to their own
performance. 50 A three-member team comprised of a judge, attorney, and public member
volunteer will review the information and isolate areas of improvement or areas in which
the judge or justice may be able to assist his/her colleagues on the bench.51
B. Conduct of Judicial Candidates and Judges
The Arizona Commission on Judicial Conduct (ACJC), created by constitutional
amendment in 1970, is the independent state agency charged with investigating
complaints against justices and/or judges on the Arizona Supreme Court, Court of
Appeals, and Superior Courts. 52
40

ARIZ. CONST. art. 6, § 12 (B).
ARIZ. CONST. art. 6, § 40.
42
Id.
43
Ariz. Comm’n on Jud. Performance Review, Evaluating Judges’ Job Performance: Judicial
Performance Review (on file with author).
44
ARIZ. R. JUD. PERFORMANCE REV. 1, 2.
45
Arizona Supreme Court, Judicial Performance Review, Membership Roster, available at
http://www.supreme.state.az.us/jpr/COMMISSION%20ROSTER.pdf (last visited May 30, 2006).
46
Arizona Supreme Court, Judicial Performance Review, Who Judges the Judges? You do! We can
help., available at http://www.supreme.state.az.us/jpr/ (last visited May 30, 2006).
47
Id.
48
Id. Results of the evaluations are “distributed throughout the state via media reports and the Secretary
of State voter information pamphlet mailed to households prior to general elections.” Id.
49
Id.
50
Id.
51
Id.
52
ARIZ. COMM’N ON JUD. CONDUCT, HANDBOOK, at 1 (Feb. 2006). The ACJC also investigates
complaints against any justice and municipal court judges. Id.
41

257

The ACJC consists of eleven members: six judges appointed by the Arizona Supreme
Court; 53 two attorneys appointed by the Board of Governors of the State Bar of Arizona;
and three individuals, neither attorneys nor judges, appointed by the Governor and
confirmed by the State Senate. 54 Members serve staggered six-year terms and must elect
a Chairperson, a Vice-Chairperson, and a Secretary, each of whom serves for two years.55
The Commission may also employ an Executive Director to serve as the chief
administrative officer, disciplinary counsel to conduct preliminary investigations and
serve as a prosecutor in the proceedings, and any other necessary staff. 56
The ACJC is authorized to examine complaints and discipline any justices, judges, or
judicial candidates who (1) engage in “willful misconduct in office,” (2) “willfully and
persistently fail to perform judicial duties,” (3) express “habitual intemperance,” (4)
engage in “conduct prejudicial to the administration of justice that brings the judiciary
into disrepute,” and/or (5) violate the Code of Judicial Conduct, the standards for ethical
conduct promulgated by the Arizona Supreme Court.57 While the ACJC recognizes a
duty “to protect the public and to maintain high standards for the judiciary and the
administration of justice,” the ACJC is also cognizant of the fact that its duty does not
encompass taking action against a justice/judge for his/her decisions of fact and/or law,
even if they are erroneous. 58 The ACJC’s authority also extends to alleged misconduct
occurring prior to a justice/judge’s term of service. 59
1. Requisite Conduct of Judicial Candidates During Campaigns
The Arizona Code of Judicial Conduct (the Code) establishes a set of standards for the
ethical conduct of judicial candidates.60 Canon 5 of the Code requires all judicial
candidates, including incumbent judges, to maintain a certain standard of conduct during
their campaigns. 61 Canon 5(A)(1) addresses “Political Conduct in General” and
specifically prohibits any judicial candidate from:
(1)
(2)
(3)

Acting as a leader or holding any office in a political organization;
Making speeches for a political organization or candidate or publicly
endorsing a candidate for public office;
Soliciting funds for or paying an assessment to a political organization or
candidate, or making contributions to a political party or organization or to
a non-judicial candidate in excess of a combined total of $250 per year; or

53

Id. The six judges consist of two judges from the court of appeals, two from the superior court, one
from a justice court, and one from a municipal court.). Id.
54
Id.; ARIZ. COMM’N ON JUD. CONDUCT R. 3(a).
55
ARIZ. COMM’N ON JUD. CONDUCT R. 3(a), (b).
56
ARIZ. COMM’N ON JUD. CONDUCT R. 4(a)-(c).
57
ARIZ. COMM’N ON JUD. CONDUCT R. 6.
58
ARIZ. COMM’N ON JUD. CONDUCT R. 5, 7. This holds true so long as the judge did not act fraudulently,
with a corrupt motive or bad faith. ARIZ. COMM’N ON JUD. CONDUCT R. 7.
59
ARIZ. COMM’N ON JUD. CONDUCT R. 2.
60
ARIZ. CODE OF JUD. CONDUCT (Preamble).
61
ARIZ. CODE OF JUD. CONDUCT Canon 5.

258

(4) Actively taking part in any political campaign other than his/her own
election, reelection or retention in office. 62
In addition, Canon 5(B), which specifically addresses “Judicial Campaign Conduct,”
mandates that any judicial candidate, including incumbent judges:
(1)

(2)

(3)

(4)

Maintain the dignity appropriate to judicial office and act in a manner
consistent with the impartiality, integrity and independence of the
judiciary, and . . . encourage members of the candidate’s family to adhere
to the same standards of political conduct in support of the candidate as
apply to the candidate;
Prohibit employees and officials who serve at the pleasure of the
candidate, and . . . discourage other employees and officials subject to the
candidate’s direction and control from doing on the candidate’s behalf
what the candidate is prohibited from doing under the sections of this
Canon;
Not authorize or knowingly permit any other person to do for the
candidate what the candidate is prohibited from doing under the sections
of this Canon;
Not (i) with respect to cases, controversies, or issues that are likely to
come before the court, make pledges, promises or commitments that are
inconsistent with the impartial performance of the adjudicative duties of
the office; or (ii) knowingly misrepresent the identity, qualifications,
present position or other fact concerning the candidate or an opponent. 63

The Code allows judicial candidates to address political gatherings on their own behalf
and to reply, in accordance with Canon 5(B), to any personal attacks on their records. 64
The Code also permits judicial candidates to campaign for retention or reelection and to
obtain public state support as well as campaign funds. 65 Judicial candidates, however,
are prohibited from personally soliciting funds and must abide by Arizona campaignfinance laws. 66 Under Arizona law, a judicial candidate may accept individual and PAC
contributions of up to $760 for state-wide races and $300 for local races; s/he may not
accept any contributions from corporations or labor unions. 67
2. Requisite Conduct of Judges
a. Conduct of Judges
The Arizona Code of Judicial Conduct includes a number of standards of conduct to
which active judges are required to adhere. This discussion, however, will focus on the
62

ARIZ. CODE OF JUD. CONDUCT Canon 5(A)(1)(a)-(d). These standards of conduct also extend to
judges.
63
ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(1)(a)-(d).
64
ARIZ. CODE OF JUD. CONDUCT Canon 5(A)(2), 5(B)(1)(e).
65
ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(2), (3).
66
ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(2). Instead, candidates “should refer prospective
contributors to the candidate’s campaign committee.” Id.
67
See American Judicature Society, Judicial Selection in the States, Arizona: Judicial Campaigns and
Elections, available at http://www.ajs.org/js/AZ_elections.htm (last visited Mar. 22, 2006).

259

standards of conduct pertaining to three issues: (1) judicial impartiality; (2) public
comment on cases; and (3) the conduct of prosecutors and defense attorneys.
i. Judicial Impartiality
Judges “should participate in establishing, maintaining and enforcing high standards of
conduct,” and are required to “personally observe those standards so that the integrity and
independence of the judiciary will be preserved.” 68 Specifically, judges are required to
be “faithful to the law” and “not be swayed by partisan interests, public clamor or fear of
criticism.” 69 Judges also are required to perform their judicial duties “without bias or
prejudice.” 70 Any judge who “manifests bias on any basis in a proceeding impairs the
fairness of the proceeding and brings the judiciary into disrepute.” 71
ii. Public Comment on Cases
Judges must refrain from making any public comment that “might reasonably be
expected to affect [a court proceeding’s] outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing” while a
proceeding is pending or impending, 72 including during any appellate process and until
final disposition. 73
iii. Conduct of Prosecutors and Defense Attorneys
The Code provides that a judge must require “lawyers in proceedings before the judge to
refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex,
religion, national origin, disability, age, sexual orientation or socioeconomic status,
against parties, witnesses, counsel or others.” 74 The judge also must require that lawyers
act in a “patient, dignified and courteous” manner to litigants. 75
A judge should act appropriately when s/he “receives information indicating a substantial
likelihood that a lawyer has committed a violation of the Rules of Professional
Conduct.” 76 Appropriate action includes “direct communication with the . . . lawyer who
has committed the violation . . . , other direct action if available, and reporting the
violation to the appropriate authority or other agency or body.” 77 A judge is obligated to
report the violation to the appropriate authority if an attorney’s violation of the Rules of
Professional Conduct raises a “substantial question” as to the attorney’s “honesty,
trustworthiness or fitness” as a practitioner and is known to the judge. 78

68
69
70
71
72
73
74
75
76
77
78

ARIZ. CODE OF JUD. CONDUCT Canon 1(A).
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(2).
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(5).
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(5) cmt.
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(9).
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(9) cmt.
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(6).
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(4).
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2).
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2) cmt.
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2).

260

3. Complaints Against Judicial Candidates and Judges
An individual wishing to file a complaint against a judge or judicial candidate may do so
by writing to the ACJC. 79 Each complaint consists of a description of the alleged
misconduct and a list of any witnesses. 80 Upon receipt of a complaint, the Executive
Director of the ACJC must conduct an initial screening. 81 The Executive Director will
dismiss any complaints found to be “frivolous, unfounded, solely appellate in nature, or
outside the jurisdiction of the commission.” 82 If, however, the complaint properly alleges
judicial misconduct, disciplinary counsel for the ACJC must conduct a preliminary
investigation. 83
A preliminary investigation may include interviews of the judge, complainant, and/or
other witnesses as well as an examination of records and documents. 84 At the conclusion
of the preliminary investigation, disciplinary counsel may recommend dismissal of the
complaint, or an informal sanction, generally constituted by a reprimand. 85 Disciplinary
counsel’s recommendations and findings must be presented to the ACJC for review
and/or approval. 86
However, if disciplinary counsel needs more information to resolve the complaint, or,
alternatively, the evidence supports charges against the judge, the ACJC will start formal
proceedings against the judge by establishing an investigative panel of three judges to
review the findings of the preliminary investigation. 87 If the investigative panel believes
that further evidence “supporting the allegations may be obtained,” the panel may
approve a full investigation. 88 Before instituting any formal proceedings, the ACJC must
notify the judge of the contents of the complaint and provide him/her with an opportunity
to respond. 89

79

ARIZ. COMM’N ON JUD. CONDUCT R. 20. The ACJC may commence a proceeding on its own motion.
Id. An incapacity proceeding also may be initiated by the filing of a complaint as well as “by a claim of
inability to defend in a disciplinary proceeding, or by an order of involuntary commitment or adjudication
of incompetency.” Incapacity proceedings, while conducted according to the procedures outlined for
disciplinary proceedings, are performed to determine whether the judge suffers from a permanent
incapacity (or one that is likely to become permanent) that seriously interferes with his/her judicial abilities.
If the ACJC finds that the judge suffers from an incapacity, it will recommend retirement. See ARIZ.
COMM’N ON JUD. CONDUCT R. 33(a)-(c).
80
How to File a Complaint Against a Judge, Complaint Form (on file with author).
81
ARIZ. COMM’N ON JUD. CONDUCT R. 21. All dismissals are subject to review by the ACJC. Id.
82
Id.
83
ARIZ. COMM’N ON JUD. CONDUCT R. 22(a).
84
ARIZ. COMM’N ON JUD. CONDUCT, supra note 52, at 3.
85
Id.; ARIZ. COMM'N ON JUD. CONDUCT R. 17(a), 22(a). Dismissal of the complaint may actually occur
at any time during the course of the investigation. ARIZ. COMM’N ON JUD. CONDUCT, supra note 52, at 3.
The ACJC issues a reprimand “for conduct that is unacceptable…but that is not so serious as to warrant
formal proceedings or further discipline by the supreme court.” ARIZ. COMM’N ON JUD. CONDUCT R.
17(a).
86
ARIZ. COMM’N ON JUD. CONDUCT R. 22(a), 23(a).
87
ARIZ. COMM’N ON JUD. CONDUCT, supra note 52, at 4; ARIZ. COMM’N ON JUD. CONDUCT R. 22(c).
88
ARIZ. COMM’N ON JUD. CONDUCT R. 22(d).
89
ARIZ. COMM’N ON JUD. CONDUCT R. 22(b).

261

After the full investigation (if one is necessary), the panel may recommend that the
complaint be dismissed or that informal sanctions be imposed.90 In such cases, the ACJC
will review the complaint, any reports compiled by the disciplinary counsel or Executive
Director, or any of the investigative panel’s recommendations. 91 The ACJC may then
choose to dismiss the complaint or impose an informal sanction.92 Either the judge or the
complainant may file a motion for reconsideration within fifteen days of the mailing of an
order, or the judge may request a formal hearing. 93
However, if the investigative panel finds that “reasonable cause to believe that one or
more grounds for discipline of a judge exists that cannot be resolved through dismissal or
informal sanctions,” formal charges must be brought against the judge. 94 The formal
charges must be served on the judge “along with a notice of formal proceedings prepared
by the [E]xecutive [D]irector,” informing the judge of the charges, his/her right to
counsel, and his/her right to respond. 95 If the judge fails to reply within fifteen days or
fails to show good cause justifying an extension of time, the allegations of misconduct
will “be deemed admitted.” 96 Once the judge files an answer or fails to file an answer
within the allotted time, the proceedings “become public and the [ACJC] may no longer
resolve the case informally.” Generally, the ACJC then will hold a formal hearing. 97
A hearing will be held before a panel of those commission members not party to the
investigative panel or, if the ACJC is indisposed, before a hearing officer or panel of
three hearing officers. 98 The presiding member of the hearing panel is charged with
overseeing all pre-hearing proceedings and presiding over the formal hearing. 99 In this
capacity, the presiding member may order a settlement conference, rule on pre-hearing
motions, and conduct pre-hearing conferences. 100 At any time before the hearing, the
presiding member may mandate a settlement conference between the parties. 101 The
judge must be afforded at least fifteen days advanced notice of the hearing. 102
Prior to the formal hearing, both parties are offered an opportunity to conduct
discovery. 103 Within twenty days after the judge files a response to the formal charges,
90
91
92
93
94

95
96
97
98
99
100
101
102
103

ARIZ. COMM’N ON JUD. CONDUCT R. 23(a).
Id.
Id.
ARIZ. COMM’N ON JUD. CONDUCT R. 23(b), (c).
ARIZ. COMM’N ON JUD. CONDUCT R. 22(f); 24(a). Note that there appears to be a discrepancy as to
when formal charges must be filed. Under Rule 22(f), if the investigative panel finds “reasonable
cause to believe that one or more grounds for discipline of a judge exists that cannot be resolved
through dismissal or informal sanctions, the investigative panel “may instruct disciplinary counsel to
prepare formal charges.” ARIZ. COMM’N ON JUD. CONDUCT R. 22(f) (emphasis added). Under Rule
24(a), “after the investigative panel finds reasonable cause to proceed, disciplinary counsel shall
prepare a statement of formal charges.” ARIZ. COMM’N ON JUD. CONDUCT R. 24(a) (emphasis added).
ARIZ. COMM’N ON JUD. CONDUCT R. 24(b).
ARIZ. COMM’N ON JUD. CONDUCT R. 25(d).
ARIZ. COMM’N ON JUD. CONDUCT, supra note 52, at 4.
ARIZ. COMM’N ON JUD. CONDUCT R. 27(a), (c).
ARIZ. COMM’N ON JUD. CONDUCT R. 27(b), (c).
Id.
ARIZ. COMM’N ON JUD. CONDUCT R. 27(e).
ARIZ. COMM’N ON JUD. CONDUCT R. 27(d).
See ARIZ. COMM'N ON JUD. CONDUCT R. 26.

262

disciplinary counsel and the judge must inform each other of all individuals having
knowledge of the alleged misconduct. 104 If a party shows good cause and the presiding
member of the hearing panel or the hearing officer grants permission, the party may
refuse to provide the requisite names. 105 Both parties have a continuing obligation to
disclose evidence related to the charges, which includes any exculpatory evidence within
the ACJC’s possession. 106 The parties must complete discovery, to the extent it is
“practicable,” forty-five days after the judge files a response to the formal charges or
fifteen days before the hearing. 107
During the hearing, counsel for both parties may present evidence and examine
witnesses, including the judge. 108 Each party also may recommend an appropriate
disciplinary measure to the ACJC. 109 All testimony must be made under oath and
findings of fact must be predicated on “clear and convincing evidence.” 110 Procedural
error will not serve as a basis to invalidate the proceedings, unless they affect the judge’s
substantive rights. 111
If the judge or his/her counsel does not appear at the hearing, s/he will have, in effect,
conceded to the allegations of misconduct as well as to the merits of any motions or
recommendations before the panel or hearing officer. 112 Only if the judge shows good
cause will a proceeding be delayed or continued in his/her absence. 113
In determining the appropriate disciplinary action, ACJC members may consider the
following factors:
(1)
(2)
(3)
(4)
(5)
(6)

The nature, extent, and frequency of the misconduct;
The judge’s experience and length of service on the bench;
Whether the conduct occurred in the judge’s official capacity or private
life;
The nature and extent to which the acts of misconduct injured other
persons or respect for the judiciary;
Whether and to what extent the judge exploited his/her position for
improper purposes;
Whether the judge has recognized and acknowledged the wrongful nature
of the conduct and manifested an effort to change or reform the conduct;

104

ARIZ. COMM’N ON JUD. CONDUCT R. 26(a).
Id.
106
ARIZ. COMM’N ON JUD. CONDUCT R. 26(c), (d). “Exculpatory evidence, for the purposes of
disciplinary proceedings, is not evidence of otherwise expected judicial conduct.” ARIZ. COMM’N ON JUD.
CONDUCT R. 26(c). Confidential information is only subject to discover upon a showing of good cause.
ARIZ. COMM’N ON JUD. CONDUCT R. 26(b).
107
ARIZ. COMM’N ON JUD. CONDUCT R. 26(e).
108
ARIZ. COMM’N ON JUD. CONDUCT R. 27(f)(5), (6). The Arizona Rules of Evidence apply to the extent
“practicable.” ARIZ. COMM’N ON JUD. CONDUCT R. 27(f)(2).
109
ARIZ. COMM’N ON JUD. CONDUCT R. 27(f)(7).
110
ARIZ. COMM’N ON JUD. CONDUCT R. 27(f)(1), (4).
111
ARIZ. COMM’N ON JUD. CONDUCT R. 27(f)(3).
112
ARIZ. COMM’N ON JUD. CONDUCT R. 27(h).
113
Id.
105

263

(7)
(8)
(9)
(10)

Whether there has been prior disciplinary action concerning the judge, and
if so, its remoteness and relevance to the present proceeding;
Whether the judge complied with prior discipline or requested and
complied with a formal ethics advisory opinion;
Whether the judge cooperated fully and honestly with the commission in
the proceeding; and
Whether the judge was suffering from personal or emotional problems or
from physical or mental disability or impairment at the time of the
misconduct. 114

The ACJC may impose formal sanctions of censure, suspension, or removal of the
judge, 115 and also may order a judge to undergo professional counseling, “participate
in… judicial education, mentoring, or other similar activities,” or recommend other
formal sanctions, including the assessment of attorney fees and costs. 116
If a hearing officer conducted the proceedings, the ACJC must review the findings of fact
and conclusions of law and may “adopt, reject, or modify the proposed
recommendations.” 117 Otherwise, the ACJC’s recommendations must be served on both
parties, and if either party disagrees with the ACJC’s decision, s/he may file a motion for
reconsideration within ten business days. 118 If a party files a motion for reconsideration,
the opposing party may file a response within ten business days. 119
Recommendations for formal sanctions are subject to review by the Arizona Supreme
Court either by petition or the court’s own motion. 120 A recommendation entailing
censure, however, will be final unless the judge or disciplinary counsel files a petition
contesting the recommendation. 121 To initiate review, the judge may file a petition to
modify or reject the final recommendation along with a request for oral argument within
fifteen days after the final recommendation is filed in the Arizona Supreme Court. 122 A
copy of the petition must be served on disciplinary counsel, who, in turn, may file his/her
own response within fifteen days of the petition’s receipt. 123 If the judge fails to
challenge the recommendation within thirty days of the filing deadline when the ACJC’s

114

ARIZ. COMM’N ON JUD. CONDUCT R. 19(a)-(j).
ARIZ. COMM’N ON JUD. CONDUCT R. 18(a). The ACJC also may recommend to the Arizona Supreme
Court the involuntary retirement of a judge, if agreed to by the parties. ARIZ. COMM’N ON JUD. CONDUCT
R. 18(b).
116
ARIZ. COMM’N ON JUD. CONDUCT R. 16(b), 18(e). If the ACJC or Arizona Supreme Court mandate
discipline that “includes terms and conditions prescribing behavior or requiring a corrective course of
action by the judge,” the ACJC must report on the judge’s compliance. If further disciplinary action is
needed, the ACJC may commence additional proceedings. ARIZ. COMM’N ON JUD. CONDUCT R. 34(a). The
judge also may request a certificate of compliance. See ARIZ. COMM’N ON JUD. CONDUCT R. 34(b).
117
ARIZ. COMM’N ON JUD. CONDUCT R. 28(b).
118
ARIZ. COMM’N ON JUD. CONDUCT R. 28(a), (b). The motion only addresses whether the evidence in
the record supports the findings of fact. Id.
119
Id.
120
ARIZ. COMM’N ON JUD. CONDUCT R. 28(c). Informal sanctions are not subject to review by the
Arizona Supreme Court. Id.
121
ARIZ. COMM’N ON JUD. CONDUCT R. 29(a).
122
ARIZ. COMM’N ON JUD. CONDUCT R. 29(c).
123
Id.
115

264

recommendation suggests suspension, removal, or retirement of the judge from office, 124
the Arizona Supreme Court may decline review or grant review on its own motion. 125 If
the judge fails to challenge the recommendation within thirty days, regardless of the
recommendation’s substance, the Executive Director of the ACJC must file in the
Arizona Supreme Court a form of judgment. 126
Alternatively, at any time before the final disposition, the judge and disciplinary counsel
may reach a settlement agreement, wherein the judge may concede to any of the
allegations or charges “in exchange for an agreed upon sanction.” 127 The agreement
must be signed by the judge and disciplinary counsel, include all material facts, and be
approved by the hearing panel or hearing officer. 128 The hearing panel or officer may
recommend modifications to the agreement, in which case the parties are afforded fifteen
days or “such reasonable time” to accept or reject the modified agreement. 129 If the
hearing panel or officer rejects the agreement, or if either party opts to reject the modified
agreement, the agreement “cannot be used by or against the judge in any proceeding.” 130
D. Judicial Training
In 1983, the Arizona Supreme Court created an educational system for all state judges
and court employees to ensure that “judicial independence and competence might be
preserved and reinforced.” 131 The Arizona Supreme Court also created the Committee on
Judicial Education and Training (COJET) to assist in the development of educational
policies and standards for the judiciary and to monitor the quality of judicial training. 132
All new Superior Court judges must participate in an orientation conducted by an
experienced Superior Court judge and meet the orientation requirements established by
COJET within a year of their appointment. 133 New appellate court judges also must
receive orientation on the procedures, functions, and laws of the appellate court from an
experienced judge within a year of their appointment. 134 In addition, new judges must
complete a requisite number of hours of training, the numbers of which are contingent
upon the month the judge commenced employment. 135 For example, new judges who
124

If the ACJC’s final recommendation entails suspension, removal, or retirement, the judge will be
disqualified upon the ACJC’s filing of the recommendation with the Arizona Supreme Court. ARIZ.
COMM’N ON JUD. CONDUCT R. 18(c).
125
ARIZ. COMM’N ON JUD. CONDUCT R. 29(d).
126
ARIZ. COMM’N ON JUD. CONDUCT R. 29(g).
127
ARIZ. COMM’N ON JUD. CONDUCT R. 30(a).
128
ARIZ. COMM’N ON JUD. CONDUCT R. 30(a), (b).
129
ARIZ. COMM’N ON JUD. CONDUCT R. 30(c).
130
ARIZ. COMM’N ON JUD. CONDUCT R. 30(b), (c).
131
Educational Services Division, Arizona Administrative Office of the Courts, Educational Policies and
Standards, at introduction, available at http://www.supreme.state.az.us/ed/ao9908.htm (last visited Apr. 11,
2006).
132
Id.
133
Id. § D(1), (4). If the superior court judge assumes a new assignment in a specialized division, the
presiding judge of the court must determine if the judge needs additional training. Id.
134
Id. § C(1), (4).
135
Id. § K(1)(b). Note that these timelines may be revised in the near future. See ARIZ. CODE OF JUD.
ADMIN. § 1-302(F) (draft version, not for re-distribution) (last revised on March 2, 2006) (on file with
author).

265

begin their employment between January 1st and March 31st must complete twelve hours
of mandatory training and education, while new judges who begin their employment
between October 1st and December 31st must only complete their orientation. 136
Subsequently, judges are obliged to complete sixteen hours of continuing education a
year, including an ethics course and an annual judicial conference. 137 If a judge fails to
complete the requisite hours of training and education, s/he is subject to disciplinary
action under the Code of Judicial Conduct. 138
Significantly, in December 2002, the Capital Case Commission, which was formed by
then Attorney General Janet Napolitano to ensure Arizona’s death penalty process is just,
timely and fair to defendants and victims, recommended that the Rules of the Arizona
Supreme Court be amended to require that judges receive at least six hours of judicial
education in capital litigation within three years of their first capital case. 139 To date, no
amendment requiring judicial training in capital cases has been adopted by the Arizona
Supreme Court.

136

Educational Services Division, Arizona Administrative Office of the Courts, Educational Policies and
Standards § K(1)(b), available at http://www.supreme.state.az.us/ed/ao9908.htm (last visited Apr. 11,
2006).
137
Id. §§ C(1); D(1), I.
138
Id. § K(1)(b). Exemptions may be obtained under certain circumstances, including medical necessity
and approved leaves of absences. Id. § K(2).
139
See OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 1, 25 (Dec.
2002). According to the Final Report, the Attorney General was charged with preparing the petition to
amend Arizona Supreme Court Rule 45. Id. at 25.

266

II. ANALYSIS
A. Recommendation #1
States should examine the fairness of their processes for the
appointment/election of judges and should educate the public about the
importance of judicial independence to the fair administration of justice and
the effect of unfair practices in compromising the independence of the
judiciary.

Currently, the Arizona judicial selection process reflects a blend of two systems. On one
hand, the Arizona Constitution requires all state appellate court judges and Superior
Court judges for counties with a population of 250,000 or more (presently only Maricopa
and Pima Counties) to be appointed by the Governor on the basis of merit from a list of
nominees compiled by a nominating commission. 140 On the other hand, the State
Constitution requires Superior Court judges from counties with a population of fewer
than 250,000 to be elected in nonpartisan elections. 141 By relying on a merit-based
system, the State of Arizona has, for the most part, insulated its judicial process from
political pressures and campaign demands, and in turn, protected the judiciary’s
independence.
The State of Arizona has tried to stimy the effects of politics on its judicial selection
process by regulating the political composition of both the nominating commissions and
the judicial nominees referred to the Governor for appointment. 142 Nonetheless, the great
majority of judges and justices appointed throughout the years have shared the same
political affiliation as their appointing governor. 143 Indeed, former Arizona Governors
Raul Castro, Evan Mecham, Rose Mofford, and Fife Symington did not appoint a single
appellate judge with a differing political party. 144 Similarly, as of April 2005, Governor
Janet Napolitano had yet to appoint a judge or justice of differing political persuasion to
the Arizona Supreme Court or the Court of Appeals. 145
Significantly, to serve an additional term, all state court judges must either participate in
unopposed retention elections or general re-elections, 146 and to serve at all, Superior
Court judges from counties with a population of fewer than 250,000 must participate in
general elections. 147 Elections, regardless of whether they are partisan or non-partisan,
raise significant questions about both the fairness of judicial selection and the
independence of judges selected to serve. 148 Judicial elections operate in tension with a
140

ARIZ. CONST. art. 6, § 37(A), (B).
ARIZ. CONST. art. 6, § 12(A); see supra notes 41-42 and accompanying text (noting that counties with
a population fewer than 250,000 may opt to select judges on the basis of merit).
142
See ARIZ. CONST. art. 6, § 37(A); see also supra notes 25, 27 and accompanying text.
143
Mark Brnovich, Goldwater Institute, Policy Report No. 203, Judging the Justices: A Review of the
Arizona Supreme Court, 2003-2004, at 6 (April 8, 2005).
144
See id.
145
See id.
146
See ARIZ. CONST. art. 6, § 38(A); ARIZ. CONST. art. 6, § 12(A).
147
See ARIZ. CONST. art. 6, § 38(A); ARIZ. CONST. art. 6, § 12(A).
148
Mark E. Behrens and Cary Silverman 11, The Case for Adopting Appointive Judicial Selection Systems
for State Court Judges, CORNELL J. OF L. AND PUBLIC POLICY 273, 277 (2002).
141

267

core principle of the judiciary— namely that “[a]n independent and honorable judiciary is
indispensable to justice in our society.” 149
One reason judicial elections are considered to be a threat to the judiciary’s independence
is that judicial elections often allow monetary influences to seep into the judicial
selection process. 150 However, in Arizona, judicial retention elections—at least on the
Supreme Court level— have not appeared to create unfair problematic financial pressure
on the candidates. Between 1993 and 2002, none of the eight Arizona Supreme Court
justices subject to retention elections raised any campaign funds. 151 Significantly,
Arizona campaign financing laws restrict the influence of contributions by prohibiting
judicial candidates from personally soliciting funds and from accepting any contributions
from corporations or labor unions. 152 In fact, judicial candidates may only accept
individual and PAC contributions of up to $760 for statewide races and $300 for local
races. 153
Secondly, elections undoubtedly correspond with campaigning. An American Bar
Association survey revealed that three quarters of Americans consider judicial
campaigning to compromise a judge’s impartiality, 154 and Canon 2 of the Arizona Code
of Judicial Conduct specifically mandates that judges not only “avoid impropriety,” but
also any “appearance of impropriety.” 155
Another potential threat to the judiciary’s independence is Arizona’s constitutionally
mandated judicial evaluation program for merit-based appointed justices and judges
subject to retention elections.156 In the early 1990’s, the Arizona Supreme Court
concluded a three-year study of its merit-based system and launched a pilot project on
judicial performance review, in part to refute criticism of the system—namely its
insulation of judges. 157 It was the Arizona legislature, however, that, at the conclusion of
its own investigation, spearheaded the passage of a constitutional amendment in 1992
requiring judicial evaluation reviews for all judges subject to retention elections. 158
149

ARIZ. CODE OF JUD. CONDUCT Canon 1(A). “An independent judiciary is one free of inappropriate
outside influences.” ARIZ. CODE OF JUD. CONDUCT Canon 1(A) cmt.
150
Compare JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS 2004 13 (2005),
with JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS 2002 19 (2005), and
JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS 2000 11 (2005); Ted A.
Schmidt, Arizona Attorney, Fair Courts Under Fire, A Special Section on Judges and Judicial
Independence, Part 1: Merit Selection of Judges Under Attack Without Merit, at 13 (Feb. 2006).
151
See JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS 2002 19, 20 (2005).
152
See ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(2); American Judicature Society, Judicial Selection in
the States, Arizona: Judicial Campaigns and Elections, available at http://www.ajs.org/js/AZ_elections.htm
(last visited Mar. 22, 2006). Instead, candidates “should refer prospective contributors to the candidate’s
campaign committee.” ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(2).
153
See ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(2); American Judicature Society, supra note 152.
Instead, candidates “should refer prospective contributors to the candidate’s campaign committee.” ARIZ.
CODE OF JUD. CONDUCT Canon 5(B)(2).
154
See Schmidt, supra note 150.
155
ARIZ. CODE OF JUD. CONDUCT Canon 2 (emphasis added).
156
ARIZ. CONST. art. 6, §42; ARIZ. COMM’N ON JUD. PERFORMANCE REV., supra note 43.
157
Daniel Becker and Malia Reddick, The American Judicature Society, Judicial Selection Reform:
Examples from Six States, at 36 (2003).
158
Id.

268

Currently, the Commission on Judicial Performance Review (CJPR), which is charged
with administering the evaluation process, 159 creates performance standards and
conducts judicial performance reviews. 160 The reviews entail surveying jurors, attorneys,
litigants, witnesses, court personnel, and others who have personal knowledge of the
justice or judge’s performance, and soliciting public comments. 161 Various media outlets
and the Secretary of State then disseminate the results of the evaluation statewide. 162
Arizona’s judicial evaluation program harbors an “inevitable tension” between its
competing goals of protecting judicial independence and fostering public
accountability. 163 Judicial independence embodies the notion that a judge should “make
decisions based on an objective, impartial review of the facts and applicable law in
accordance with constitutional and legal principles, free of outside influence or
pressure.” 164 In this case, public accountability allows for voters to decide whether to
retain judges based on their judicial performance. 165 Although judicial independence is
compromised when a judge considers the impact of a decision on his/her retention
election, Arizona’s performance review limits its standards to determining whether
judges:
(1)
(2)
(3)
(4)
(5)

Administer justice fairly, ethically, uniformly, promptly and efficiently;
Are free from personal bias when making decisions and decide cases
based on the proper allocation of law;
Issue prompt rulings that can be understood and make decisions that
demonstrate competent legal analysis;
Act with dignity, courtesy and patience; and
Effectively manage their courtrooms and the administrative
responsibilities of their office. 166

Importantly, the performance standards do not directly review actual decisions made by a
judge, although the evaluation of a judge’s competency in legal analysis could arguably
extend into this area. The CJPR also restricts its published findings to whether or not a
judge meets the performance standards and to the percentages of evaluators who gave the
judge a “satisfactory,” “very good,” or “superior” in each category of review. 167 In fact,
in its 2004 Voter Information Guide, the CJPR listed the following judicial performance
standards in its evaluations: legal ability, integrity, communication skills, judicial
To further protect judicial
temperament, and administrative performance. 168
159

ARIZ. COMM’N ON JUD. PERFORMANCE REV., supra note 43.
Arizona Supreme Court, supra note 46.
161
Id.
162
Id. Results of the evaluations are “distributed throughout the state via media reports and the Secretary
of State voter information pamphlet mailed to households prior to general elections.” Id.
163
John Pelander, Judicial Performance Review in Arizona: Goals, Practical Effects and Concerns, 30
ARIZ. ST. L. J. 643, 700 (1998); RULES OF PROCEDURE FOR JUD. PERFORMANCE REV. IN THE STATE OF
ARIZ. R.1.
164
Pelander, supra note 163 (emphasis added).
165
ARIZ. COMM’N ON JUD. PERFORMANCE REVIEW, Judicial Merit Selection and Retention in Arizona (on
file with author).
166
ARIZ. COMM’N ON JUD. PERFORMANCE REV., supra note 43.
167
ARIZ. COMM’N ON JUD. PERFORMANCE REVIEW, 2004 VOTER INFORMATION GUIDE, REPORT OF THE
ARIZ. COMM’N ON JUD. PERFORMANCE REV., at 6, 7.
168
Id. at 7.
160

269

independence, judges also have the right to appear before or submit written comments to
the CJPR prior to the publication of the Voter Information Guide, 169 and all narrative
comments in the surveys are confidential.170 The evaluation process itself also is
conducted confidentially. 171
Despite Arizona’s attempts to safeguard the judiciary’s independence, politics are
steadily being infused into Arizona’s retention elections.
In 2004,
NOBADJUDGES.COM, a political committee registered with the Arizona Secretary of
State, launched a campaign against Maricopa County Superior Court Judge Ken Fields
and Maricopa County Superior Court Judge William Sargeant for their “outrageously
activist and offensive decisions,” namely with respect to abortion. 172 Although judges on
average garnered seventy-three to seventy-five percent voter approval during the 2004
general elections, Judge Fields received only a sixty-eight percent voter approval, while
Judge Sargeant received sixty-nine percent voter approval. 173 Len Munsil, Chairman of
NOBADJUDGES.COM, claimed that his committee “moved 25,000 votes in a threeweek campaign without very much money and with no help from the media.” 174
In Arizona, the notion of a fair and autonomous judiciary appears to be shifting in favor
of greater public accountability. 175 In 2000, an Arizona Republic editorial opined that
“the people should have the right to shape, gradually over[]time, the judicial philosophy
under which they are governed.” 176 Since its adoption in 1974, the Arizona legislature
has attacked the merit-based system at least thirteen times. 177 Those opposing the system
have advocated for partisan elections, for non-binding recommendations of judicial
nominees, for increasing the requisite vote to win a retention election from a majority to a
two-thirds vote, for subjecting the governor’s judicial appointments to senate
confirmation, and for general contested elections in the selection of all judges. 178 In his
February 2005 State of the Judiciary Address, former Chief Justice Charles E. Jones
responded to legislative attacks on judicial independence when he stated in his
concluding remarks to the Arizona State Senate and House of Representatives that:
An independent judiciary is absolutely essential if the rule of law is to be
maintained. I am aware that some of you have expressed unhappiness
over a number of court decisions. I suggest, however, that by reason of
our constitutional structure, tension between the branches has been with us
in varying degree since the beginning of the Republic. It will probably
169

R. OF PROC. FOR JUD. PERFORMANCE REV. IN THE STATE OF ARIZ. 6(e)(2).
R. OF PROC. FOR JUD. PERFORMANCE REV. IN THE STATE OF ARIZ. 6(c).
171
R. OF PROC. FOR JUD. PERFORMANCE REV. IN THE STATE OF ARIZ. 6(a).
172
NOBADJUDGES.COM,
Frequently
Asked
Questions,
available
at
http://www.nobadjudges.com/faq.htm (last visited Apr. 7, 2006).
173
Michael Kiefer, THE ARIZ. REPUBLIC., Judges/Groups Says Its Efforts Hurt Pair’s Poll Ratings, Nov.
4, 2004, at 9B.
174
Id.
175
See ARIZ. SUP. CT., A STRATEGIC AGENDA FOR ARIZONA’S COURTS 2005-2010, at 13 (delineating the
judiciary’s goal of “Being Accountable”).
176
Robert Robb, THE ARIZ. REPUBLIC, One Proposal for Reforming State Judiciary, Jan. 19, 2000, at 9B.
177
Ted A. Schmidt, Arizona Attorney, Fair Courts Under Fire, A Special Section on Judges and Judicial
Independence, Part 1: Merit Selection of Judges Under Attack Without Merit, at 13 (Feb. 2006).
178
Id. at 17.
170

270

continue as long as we remain a free and independent people. I simply
express the hope that tension not become a destructive force. 179
As reflected in former Chief Justice Jones’ comments, Arizona’s judicial system is not
immune to political pressure, and recent trends indicate a gradual erosion of the
judiciary’s independence. Still, Arizona’s system has been toted as a model by the
United States in “helping other countries reform the[ir] judicial system[s],” and, at its
core, continues to reflect an independent judiciary. 180 Efforts should be taken to ensure it
remains so.
The Arizona Supreme Court in A Strategic Agenda for Arizona’s Courts 2005-2010
(Strategic Agenda) highlighted its goal of “foster[ing] public understanding” of the
judiciary’s role through community outreach and educational programs. 181 One initiative
specifically calls for the judiciary, in conjunction with the State Bar of Arizona, to
enlarge school educational programs in order to cultivate a greater understanding of the
courts’ role under a constitutionally-based government. 182 The Strategic Agenda also
calls for a number of public educational efforts that, although not directly related to
judicial independence, touch upon the judicial selection process and the activities of the
judiciary. 183
Although the State of Arizona has examined the fairness of the judicial
appointment/election process in the past and has committed itself to undertaking a public
education effort to inform the public about the role of the judiciary, we have been unable
to ascertain the full scope and contents of these examinations and efforts. Accordingly,
we can only find that Arizona is in partial compliance with Recommendation # 1.
B. Recommendation #2
A judge who has made any promise—public or private—regarding his or
her prospective decisions in capital cases that amounts to prejudgment
should not preside over any capital case or review any death penalty
decision in the jurisdiction.

The Arizona Code of Judicial Conduct (Code) prohibits judicial candidates and judges
from making statements that may impact current and/or future decisions. Canon 5 of the
Code states that judicial candidates may not “with respect to cases, controversies, or
issues that are likely to come before the court, make pledges, promises or commitments
that are inconsistent with the impartial performance of the adjudicative duties of the
office,” 184 but that judicial candidates must “act in a manner consistent with the
impartiality, integrity and independence of the judiciary.” 185 The accompanying
179

2005 State of the Judiciary Address by the Honorable Chief Justice of Arizona, at 9 (Feb. 21, 2005).
See Schmidt, supra note 150, at 16.
181
ARIZ. SUP. CT., supra note 175, at 14.
182
Id. at 15.
183
See id. at 14, 15. For example, the Strategic Agenda states that the judiciary “must make every effort
to ensure voters, who decide on judicial election and retention, have sufficient information provided to
them to make an informed choice at the voting booth.” Id. at 14.
184
ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(1)(d)(i).
185
ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(1)(a).
180

271

commentary to Canon 5 also indicates that “disqualification or other remedial action may
be required of any judge in cases that involve an issue about which the judge previously
announced his or her views even if such action is otherwise appropriate under the
[C]ode.” 186 Similarly, Canon 3 states that judges must refrain from making any public
comment that “might reasonably be expected to affect [a court proceeding’s] outcome or
impair its fairness or make any non-public comment that might substantially interfere
with a fair trial or hearing” at any time while a proceeding is pending or impending in
any court, including during any appellate process and until final disposition. 187
Because complaints filed against judges were confidential until January 1, 2006, we were
unable to determine whether or how often judges were disciplined as a result of
comments made during a judicial campaign or their term in office that relate to the death
penalty, since the creation of the Arizona Commission on Judicial Conduct in 1970.
Based on this information, it is unclear whether the State of Arizona is taking sufficient
steps to preclude judges, who make promises regarding their prospective decisions in
capital cases that amount to prejudgment, from presiding over capital cases or from
reviewing any death penalty decision in the jurisdiction. Accordingly, we are unable to
conclude whether Arizona is in compliance with Recommendation # 2.
C. Recommendation #3
Bar associations and community leaders should speak out in defense of
sitting judges who are criticized for decisions in capital cases, particularly
when the judges are unable, pursuant to standards of judicial conduct, to
speak out themselves.
a. Bar associations should educate the public concerning the roles and
responsibilities of judges and lawyers in capital cases, particularly
concerning the importance of understanding that violations of
substantive constitutional rights are not “technicalities” and that judges
and lawyers are bound to protect those rights for all defendants.
b. Bar associations and community leaders publicly should oppose any
questioning of candidates for judicial appointment or re-appointment
concerning the percentages of capital cases in which they have upheld
the death penalty.
c. Purported views on the death penalty or on habeas corpus should not be
litmus tests or important factors in the selection of judges.

We did not obtain sufficient information to appropriately assess the role of bar
associations and community leaders in fulfilling the requirements of Recommendation
#3.
We note, however, that the Arizona State Bar has recognized the significance of
maintaining an independent judiciary for numerous years. Indeed, the Arizona State Bar
186
187

ARIZ. CODE OF JUD. CONDUCT Canon 5(B)(1)(d)(i) cmt.
ARIZ. CODE OF JUD. CONDUCT Canon 3(B)(9).

272

passed a resolution stating its belief that “in a democratic society, fair, open and vigorous
debate and criticism of judges and judicial decisions is necessary and appropriate. But…
efforts . . . to intimidate judges and thereby diminish the independence of the judiciary
must not be permitted.” 188 Additionally, in 1997, the Arizona State Bar created the
Committee on Separation of Powers and Judicial Independence (Committee), and
recognized a duty to “denounce . . . attacks on judicial autonomy and individual judges
in particular cases.” 189
Although the Committee is no longer in existence, the Arizona State Bar continues to
advocate for the judiciary’s independence. More recently, in September 2005, President
Helen Perry Grimwood urged Arizona attorneys to “stand up for judicial independence
and our judicial system.” 190 In February 2006, President Grimwood reiterated the need to
“stand[] up for fair, impartial courts” and urged Bar members to monitor attacks on the
judiciary, openly communicate with legislators and neighbors about the importance of
impartial courts, and to use a tool-kit available on the State Bar’s website to educate
themselves and others. 191
D. Recommendation # 4
A judge who observes ineffective lawyering by defense counsel should
inquire into counsel's performance and, where appropriate, take effective
actions to ensure that the defendant receives a proper defense.

Recommendation # 5
A judge who determines that prosecutorial misconduct or other activity
unfair to the defendant has occurred during a capital case should take
immediate action authorized in the jurisdiction to address the situation and
to ensure that the capital proceeding is fair.

The Arizona Code of Judicial Conduct advises judges to “take appropriate action” when
they receive information indicating a “substantial likelihood” that an attorney has
committed a violation of the Rules of Professional Conduct. 192 Appropriate action
includes “direct communication with the . . . lawyer who has committed the violation. . .
and reporting the violation to the appropriate authority or other agency or body.” 193 The
Code mandates that a judge report the violation to the appropriate authority if the
attorney’s violation of the Rules of Professional Conduct raises a “substantial question”
as to the attorney’s “honesty, trustworthiness or fitness” as a practitioner and is known to
the judge. 194

188

See Michael L. Piccarreta, Arizona Attorney, President’s Message, at 12 (Jan. 1997).
Id. at 11.
190
Helen Perry Grimwood, ARIZ. ATTORNEY, President’s Message, Taking Actions to be Leaders, at 6
(Sept. 2005).
191
Helen Perry Grimwood, ARIZ. ATTORNEY, President’s Message, Standing Up for Fair, Impartial
Courts, at 6 (Feb. 2006).
192
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2).
193
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2) cmt.
194
ARIZ. CODE OF JUD. CONDUCT Canon 3(D)(2).
189

273

We were unable to ascertain the measures taken by individual judges to remedy the harm
caused by “ineffective lawyering” of defense counsel or “prosecutorial misconduct.”
Consequently, we are unable to assess Arizona’s compliance with these
recommendations.
E. Recommendation # 6
Judges should do all within their power to ensure that defendants are
provided with full discovery in all capital cases.

A capital defendant has no constitutional right to pretrial discovery, 195 nor does the
Arizona Revised Statutes or the Code of Judicial Conduct explicitly require judges to
ensure that capital defendants are provided with full discovery. However, Canon 3 of the
Arizona Code of Judicial Conduct does require judges to be “faithful to the law” and
perform their judicial duties impartially, 196 which includes enforcing existing discovery
laws.
Additionally, under Rule 15 of the Arizona Rules of Criminal Procedure (Rule 15),
judges must enforce disclosure of certain information and materials within the possession
or control of the prosecutor or defendant. 197 If either party has a “substantial need” for
additional information or material that is not otherwise provided by Rules 15.1 or 15.2 of
the Arizona Rules of Criminal Procedure and whose obtainment places “undue hardship”
on the party, the judge may exercise his/her discretion to order its availability. 198 Where
the prosecutor has requested additional discovery, the judge must ensure that the
defendant’s constitutional rights will not be violated. 199 Judges also may exercise their
discretion to order depositions, provided the deposed individual is not the defendant. 200
If a party fails to disclose any material s/he wishes to use at trial within the prescribed
time-limit, 201 the party may move to extend the prescribed time and include the use of the

195

Calderon-Polomino v. Nichols, 36 P.3d 767, 771 (Ariz. Ct. of App. 2001).
ARIZ. CODE OF JUD. CONDUCT Canon 3, 3(B)(2).
197
See ARIZ. R. CRIM. P. 15.1 (delineating the disclosure requirements of the State); ARIZ. R. CRIM. P.
15.2 (delineating the disclosure requirements of the defendant). However, a “victim” has the right to have
the prosecutor withhold his/her address and telephone number as well as the place of his/her employment
during discovery. ARIZ. R. CRIM. P. 39(b)(10). If the defendant shows good cause, the judge may order the
information to be disclosed, along with any other restrictions the judge finds appropriate. Id. A victim also
has the right to decline discovery requests by the defendant, including requests for an interview and a
deposition. ARIZ. R. CRIM. P. 39(b)(11). A victim as defined under this rule includes an individual against
whom a criminal offense as detailed in section 13-4401(6) of the A.R.S. has allegedly occurred or the
spouse, parent, lawful representative or child of an individual killed or incapacitated, provided the spouse,
parent, lawful representative, or child is not the alleged perpetrator. ARIZ. R. CRIM. P. 39(a)(1).
198
ARIZ. R. CRIM. P. 15.1(g), 15.2(g). If the court’s order would be “unreasonable or oppressive,” the
affected individual may request that the court vacate or modify the order. ARIZ. R. CRIM. P. 15.1(g),
15.2(g).
199
ARIZ. R. CRIM. P. 15.2(g).
200
ARIZ. R. CRIM. P. 15.3(a). A party or witness must first file a motion and must meet the requirements
outlined in Rule 15(a) before the judge may order a deposition be taken. See id.; see also supra note 197
(granting “victims” the right to refuse depositions requested by the defendant or on his/her behalf).
201
Disclosure must be completed generally at least seven days before the trial, unless otherwise provided.
ARIZ. R. CRIM. P. 15.6(c)
196

274

material at trial. 202 If the judge determines that the material “could not have been
discovered or disclosed earlier even with due diligence,” and was immediately disclosed
upon its discovery, the judge must allow the introduction of the materials at trial. 203
Otherwise, the judge has discretion to grant or deny the motion. 204
If a party fails to comply with Rule 15, the aggrieved party may move to compel
disclosure and sanctions. 205 The judge must order disclosure and must impose any
sanctions it finds appropriate, unless the judge finds that the non-compliance was
harmless, or that earlier disclosure was not possible with “due diligence” and occurred
immediately after its discovery. 206 Significantly, Arizona judges have discretion to
restrict discovery under Rule 15 whenever they find that the “disclosure would result in a
risk or harm outweighing any usefulness of the disclosure to any party,” and that “the risk
cannot be eliminated by a less substantial restriction of discovery rights.” 207
Unfortunately, in at least one capital case, the Arizona Supreme Court refused to exercise
its judicial authority to “order more liberal discovery than usual.” 208 However, we were
unable to obtain sufficient information to assess whether Arizona judges, as a whole, are
ensuring that defendants are provided with full discovery in capital cases.

202

ARIZ. R. CRIM. P. 15.6(d).
Id. Absent a finding of “dilatory conduct, neglect, or other improper reason” by the moving party or
under the prosecution or defendant’s control as detailed in Rules 15.1(f) and 15.2(f), the judge must grant
an extension of time for scientific evidence. ARIZ. R. CRIM. P. 15.6(e).
204
ARIZ. R. CRIM. P. 15.6(d). In such case, if the judge grants the motion, s/he may still impose sanctions
as listed under Rule 17.5, so long as it is neither preclusion nor dismissal. Id.
205
ARIZ. R. CRIM. P. 15.7(a). Before such a motion can be made, counsel must have made good faith
efforts to resolve the matter. See ARIZ. R. CRIM. P. 15.7(b). In cases wherein a plea deadline is in place
and the prosecution fails to disclose materials under Rule 15.1(b) thirty days before trial, the court, on the
defendant’s motion, must consider such impact on the defendant’s decision to accept or reject the plea. See
ARIZ. R. CRIM. P. 15.8.
206
ARIZ. R. CRIM. P. 15.7(a). Before such a motion can be made, counsel must have made good faith
efforts to resolve the matter. See ARIZ. R. CRIM. P. 15.7(b).
207
ARIZ. R. CRIM. P. 15.5(a), (1), (2). The court must be shown good cause by a party’s motion. Id.
208
State v. West, 862 P.2d 192, 207 (Ariz. 1993), overruled on other grounds. In this case, the discovery
request was made after the trial. Id.
203

275

276

CHAPTER TWELVE
RACIAL AND ETHNIC MINORITIES
INTRODUCTION TO THE ISSUE
In the past twenty-five years, numerous studies evaluating decisions to seek and to
impose the death penalty have found that race is all too often a major explanatory factor.
Most of the studies have found that, holding other factors constant, the death penalty is
sought and imposed significantly more often when the murder victim is white than when
the victim is African-American. Studies also have found that in some States, the death
penalty has been sought and imposed more frequently in cases involving AfricanAmerican defendants than in cases involving white defendants. The death penalty
appears to be most likely in cases in which the victim is white and the perpetrator is
black.
In 1987, the United States Supreme Court held in McCleskey v. Kemp 1 that even if
statistical evidence revealed systemic racial disparity in capital cases, this would not
amount to a federal constitutional violation in and of itself. At the same time, the Court
invited legislative bodies to adopt legislation to deal with situations in which there is
systematic racial disparity in the implementation of the death penalty.
The pattern of racial discrimination reflected in McCleskey persists today in many
jurisdictions, in part, because courts often tolerate actions by prosecutors, defense
lawyers, trial judges, and juries that can improperly inject race into capital trials. These
include intentional or unintentional prosecutorial bias when selecting cases in which to
seek the death penalty; ineffective defense counsel who fail to object to systemic
discrimination or to pursue discrimination claims; and discriminatory use of peremptory
challenges to obtain all-white or largely all-white juries.
There is little dispute about the need to eliminate race as a factor in the administration of
the death penalty. To accomplish that, however, requires that we identify the various
ways in which race infects the administration of the death penalty and that we devise
strategies to root out discriminatory practices.

1

481 U.S. 279 (1987).

277

I. FACTUAL DISCUSSION
The issue of racial and ethnic discrimination in the administration of the death penalty
was brought to the forefront of the death penalty debate by the United States Supreme
Court’s decision in McCleskey v. Kemp. 2 Relying on a study conducted by David
Baldus, Charles Pulaski, and George Woodworth (the Baldus study), McClesky
challenged the constitutionality of Georgia’s capital sentencing process by arguing that it
was applied in a racially discriminatory manner because blacks convicted of killing
whites were found to have the greatest likelihood of receiving the death penalty, while
whites convicted of killing blacks were rarely sentenced to death. 3 The Court rejected
McCleskey’s claims, finding that the figures evidencing racial discrepancies in the
administration of the death penalty did not prove the existence of intentional racial
discrimination in his particular case. 4 While rooted in Georgia law, the holding—that to
be found unconstitutional, discrimination must be proven in an individual case—applied
nationwide.
Nearly five years later, the United States Court of Appeals for the Ninth Circuit applied
the McClesky holding to Arizona. 5 In Carriger v. Lewis, Carringer relied on statistical
evidence showing the death penalty was applied more frequently when the victim was
white to argue that Arizona’s capital sentencing statute was unconstitutional. 6 Because,
as in McCleskey, Carriger failed to offer more than systemic statistical evidence, the court
refused to find that Carriger had proven discrimination in his case. 7
Despite the Carringer decision, the existence of racial and/or ethnic discrimination in
Arizona’s criminal justice system continued to be discussed and studied state-wide. In
addition to state-sponsored empirical studies, the Arizona Supreme Court recognized the
problem of racial and/or ethnic bias when it formed the Commission on Minorities in the
Judiciary and again in its 2005-2010 Strategic Agenda. The Attorney General’s Capital
Case Commission also considered the issue as part of its study of Arizona’s death penalty
system. Our discussion below outlines the efforts undertaken by the State of Arizona and
others to identify and/or address any racial and/or ethnic bias within the State’s criminal
justice system.
A. Continuing Empirical Analysis
1. Explaining Death Row’s Population and Racial Composition 8
The systemic racial and ethnic disparities within Arizona’s death penalty system were
highlighted in the 2004 study Explaining Death Row’s Population and Racial
Composition (the Study). 9 By comparing thirty-one states’ death row populations with
2

Id.
Id. at 291-92.
4
Id. at 297.
5
Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992).
6
Id.
7
Id.
8
John Blume, Theodore Eisenberg, and Martin T. Wells, Explaining Death Row’s Population and
Racial Composition, 1 J. EMPIRICAL LEGAL STUDIES 165 (2004).
9
See id. at 167.
3

278

the number of murders in each state, the Study revealed that blacks were underrepresented as a whole on America’s death row. 10 However, the Study also found that
race played a “substantial role in the administration of the death penalty” in two
respects. 11 First, blacks who murder whites were most likely to be sentenced to death, in
turn, bolstering the portion of blacks on death-row. 12 Second, blacks who murder blacks
were least likely to receive death sentences, in turn, depressing the number of blacks on
death row. 13
With respect to Arizona, the Study revealed that the State was ten times more likely to
impose the death penalty when the defendant and victim were both white as compared to
when the defendant and victim were both minorities.14 The Study also found that
Arizona imposed death sentences more frequently when a minority murdered a white
than when a white murdered a minority. 15
2. The Capital Case Commission
The State of Arizona specifically addressed the issue of racial and/or ethnic
discrimination in its capital system as part of the review undertaken by the Capital Case
Commission in 2000. The Capital Case Commission, created by then-Attorney General
Janet Napolitano to ensure the just and timely implementation of the death penalty, was
mandated to identify any racial and/or ethnic biases in the administration of the death
penalty as part of its mandate. 16
To examine the issue of racial and/or ethnic discrimination, the Capital Case
Commission’s Data/Research Subcommittee compiled a significant amount of relevant
data. 17 In addition to collecting data in cases in which a death sentence had been
imposed from January 1, 1974 through July 1, 2000, 18 the Capital Case Commission also
examined information from three various decision points in the administration of the
death penalty— (1) the grand jury’s return of the indictment, (2) the prosecutor’s decision
to seek the death penalty, and (3) the decision to impose the death penalty—for Maricopa

10

Id. at 166, 169 (concluding that “African Americans are sentenced to death at lower rates than whites”
and that although “African Americans commit more than 50% of the country’s murders . . . they comprise
40% of death row.”).
11
Id. at 190.
12
Id.
13
Id. at 167, 192.
14
Id. at 199. The death-sentence rate for minority defendant-minority victim homicides was 5.4 per
1,000 murders while the white defendant-white victim homicide rate was 58.9 per 1,000 murders. Id.
Because Hispanics and blacks comprise a significant portion of Arizona’s population, the Study combined
both groups into one “minority” category. Id. at 196.
15
Id. at 197.
16
OFFICE OF THE ATTORNEY GENERAL, CAPITAL CASE COMMISSION FINAL REPORT, at 1, 26 (Dec. 2002).
17
Id. at 2, 26; Summary of Death Sentence Process: Data Set I Research Report to Arizona Capital Case
Commission, March 2001, at v (examining the characteristics of 230 Arizona death sentence cases from
1974 through July 1, 2000) [hereinafter Data Set I]; Arizona First-degree Murder Cases Summary of 19951999 Indictments: Data Set II Research Report to Arizona Capital Case Commission, June 2002, at v
(focusing on the first-degree murder indictments in Arizona from 1995 to 1999 and comparative analyses
of those cases) [hereinafter Data Set II].
18
Data Set I, supra note 17.

279

County, Pima County, the outlying counties, and the State as a whole from January 1,
1995 to December 31, 1999. 19
The Capital Case Commission’s data for 1995 through 1999 revealed the following
discrepancies in Arizona’s death sentencing rates:
(1)

(2)

(3)

(4)
(5)

The percentage of indictments resulting in death sentences for cases in
which both the defendant and the victim were white was nearly eight times
higher than those cases in which both the defendant and the victim were
minorities. 20
The percentage of indictments resulting in death sentences for cases
consisting of a minority defendant and a white victim was five times
higher than those cases consisting of a white defendant and a minority
victim. 21
In Maricopa County and the outlying counties, there was not a single
indictment resulting in a death sentence for a case in which the defendant
was white, but the victim was a minority. 22
Only one out of 316 first-degree murder indictments in which the victim
was Hispanic led to a death sentence. 23
Throughout the State, prosecutors chose to seek the death penalty less
frequently when the homicide victim was a minority, with judges
following a similar pattern, opting to impose the death penalty less
frequently when the victim was a minority and more frequently when the
victim was white. 24

In its December 2002 Final Report, the Capital Case Commission unanimously agreed
that the criminal justice community was responsible for promoting practices that
guaranteed “race-neutral” decisions in respect to capital defendants and their victims. 25
However, various members of the Capital Case Commission disagreed as to the relevance
of the data and the existence of racial and/or ethnic discrimination in the State’s
administration of the death penalty. 26 While some Commission members found that
19

Data Set II, supra note 17, at v, 15.
Id. at 15. In Arizona, where a white defendant was indicted for killing a white individual, the
percentage of indictments resulting in death sentences was 9.1%. Whereas, where a minority was indicted
for killing another minority, the percentage of indictments resulting in death sentences was 1.2%. Id. Note
that although the Data Set II Research Report uses the term “defendant of color,” we instead have used the
term “minority” when referring to the statistics synthesized within the Commission’s reports. For purposes
of the Data Set II Research Report, the term minority encompasses Hispanics, African Americans,
American Indians and Asians. See id. at 16.
21
Id. at 15 (noting that the percentage of indictments resulting in death sentences for minority defendantwhite victim cases was 10.3%, while the percentage for white defendant-minority victim cases was 2.0%).
22
Id.
23
CAPITAL CASE COMMISSION, supra note 16, at 29.
24
Data Set II, supra note 17, at 15 (denoting the percentage of cases in which the prosecutor decided to
seek the death penalty and the judge decided to impose the death penalty on the basis of the defendant and
victim’s race/ethnicity).
25
CAPITAL CASE COMMISSION, supra note 16, at 27. The Commission also unanimously agreed that
“participants in the system should use the empirical data from Data Sets I and II in internal reviews and
discussions regarding the death penalty process.” Id.
26
Id. at 26, 27.
20

280

racial bias did not appear in its administration, other members concluded that racial bias
may exist in relation to the victim’s race and/or ethnicity, or, alternatively, that it was
impossible to determine its existence from the statistical evidence presented. 27
B. Judicial Responses to Real and/or Perceived Bias in the Judicial System
1. The Commission on Minorities in the Judiciary
In 1990, the Arizona Supreme Court created the Commission on Minorities in the
Judiciary to help eradicate barriers to racial equality and increase the number of
minorities in the judiciary. 28
Presently, the Commission on Minorities in the Judiciary, whose members along with its
Chair and Vice Chair are appointed by the Chief Justice of the Arizona Supreme Court,
meets every two months and consists of four working groups—Diversity, Cultural
Competency, Overrepresentation, and Collaboration. 29 Although the Commission’s
activities have centered on the over-representation of minority youth in the juvenile
justice system, the Commission’s work also encompasses areas focusing on racial and/or
ethnic equality and understanding. Over the past decade, some of those efforts include:
(1)
(2)
(3)
(4)
(5)

Offering Judicial Appointment Workshops for minority attorneys;
Offering Judicial Clerkship Workshops at state universities and law
schools for minority students;
Incorporating a cultural competency component in the New Judges
Orientation;
Monitoring judicial appointments; and
Helping to establish the Committee to Study Interpreter Issues in the
Arizona Courts and the Arizona Court Interpreter Funding Committee. 30

2. The 2005-2010 Strategic Agenda
In June 2005, the Arizona Supreme Court carved out Goal #1 in its Strategic Agenda for
the years 2005 through 2010—“Providing Access to Swift and Fair Justice”—in part to
address bias in the judicial system. 31 Recognizing that “all citizens coming before the
courts are entitled to equal justice, regardless of race [or] ethnicity,” 32 the Arizona
27

Id. at 26.
ARIZ. CODE OF JUD. ADMIN. § 1-107(B) (2005); State of Arizona Supreme Court, Commission on
Minorities in the Judiciary, at http://www.supreme.state.az.us/courtserv/ComMinorities/minorities.htm (last
visited March 16, 2006); ARIZONA SUPREME COURT COMMISSION ON MINORITIES, PROGRESS REPORT, June
1994-May 1996, at i.
29
See ARIZ. CODE OF JUD. ADMIN. § 1-107(B) (2005); Commission on Minorities in the Judiciary,
Strategic Planning Session, Accomplishments as enumerated on January 10, 2006, available at
http://www.supreme.state.az.us/courtserv/ComMinorities/agenda-minutes.htm (last visited March 16,
2006); Commission on Minorities in the Judiciary, Approval of a 2006 Meeting Schedule, Feb. 23, 2006,
available at http://www.supreme.state.az.us/courtserv/ComMinorities/agenda-minutes.htm (last visited
Mar. 16, 2006).
30
See Strategic Planning Session, supra note 29; Commission on Minorities, Arizona Supreme Court,
Update, Aug. 2000.
31
ARIZ. SUP. CT., A STRATEGIC AGENDA FOR ARIZONA’S COURTS 2005-2010, at 2, 4.
32
Id. at 4.
28

281

Supreme Court called for the judicial system to “[c]ontinue to strive for a justice system
in Arizona that is free from actual or perceived racial, ethnic, gender, or economic bias,”
by:
(1)
(2)
(3)

(4)

33

Enhancing communication between the courts and minority communities;
Providing continuing education to the judiciary and judicial staff on issues
of cultural and racial diversity;
Increasing the diversity of the judiciary at all levels to reflect the
communities it serves while maintaining the highest level of judicial
qualifications;
Addressing the over-representation of minority youth in the justice system
through the “Building Blocks” initiative. 33

Id. at 5.

282

II. ANALYSIS
A. Recommendation #1
Jurisdictions should fully investigate and evaluate the impact of racial
discrimination in their criminal justice systems and develop strategies that
strive to eliminate it.

Arizona has undertaken at least three initiatives that seek to investigate and evaluate the
impact of racial discrimination in its criminal justice system and/or strive to eliminate it:
the Attorney General’s Capital Case Commission, the Arizona Supreme Court’s
Commission on Minorities in the Judiciary, and the Court’s Strategic Agenda for 2005
through 2010.
1. The Capital Case Commission
In 2000, the Office of the Attorney General formed the Capital Case Commission to
ensure the just and timely implementation of the death penalty in Arizona. 34 In assessing
racial and/or ethnic bias in the State’s criminal justice system, the Capital Case
Commission’s investigation focused, in part, on indictments resulting in death sentences,
on prosecutorial discretion to seek the death penalty, and on judicial decisions to impose
the death penalty. 35
The Capital Case Commission’s investigation and evaluation of racial discrimination in
the State’s criminal justice system relied on statistical evidence detailing the
race/ethnicity of each defendant and victim in cases in which the death penalty was
imposed between January 1, 1974 and July 1, 2000, as well as a comparative analysis of
all first-degree murder cases resulting in an indictment between January 1, 1995 and
December 31, 1999. 36 To the best of our knowledge, the investigation and evaluation did
not include any public hearings, interviews, surveys, or reviews of studies.
Despite the fact that several Commission members found that “it is impossible to draw
conclusions” as to the existence of any racial bias in the Arizona criminal justice
system, 37 the Commission’s Final Report concluded that “any suggestion that Arizona’s
death penalty process reflects a racial bias appears to be unwarranted.” 38 In support of
this statement, the Capital Case Commission cited to the fact that “[s]eventeen out of the
22 people executed in Arizona since the State’s death penalty statute was amended in
1973 were Caucasian, and approximately 70% of the current death-row population in
Arizona is Caucasian.” 39

34
35
36
37
38
39

CAPITAL CASE COMMISSION, supra note 16, at 1, 26.
Id. at 26-27; Data Set II, supra note 17, at v, 15.
Data Set I, supra note 17, at v; Data Set II, supra note 17, at v.
CAPITAL CASE COMMISSION, supra note 16, at 26.
Id. at 27.
Id.

283

In arriving at this conclusion, the Capital Case Commission validated the importance of
statistics regarding the race of defendants, but downplayed the importance of statistics
regarding the race of victims in assessing the role of racial and/or ethnic bias in Arizona’s
capital system. Although the Commission’s data showed that the death penalty was
imposed more frequently when the murder victim was white as opposed to when the
murder victim was a minority and eight Commission members noted in dissenting
comments that the imposition of the death penalty was significantly related to the
victim’s race, 40 the Commission’s Final Report stated that:
Statistics relating to the race of the victim are not necessarily informative
regarding racism. An analysis of whether race plays a role in the process
is more appropriately focused on the race of the defendant . . . Statistics
relating to the race of the victim may be misleading because they may
relate to the type of murder committed rather than to the way the
defendant is treated in the death penalty process. Some types of murders
are less likely to be pursued as a capital case, not because of the race of
the victim, but because of the nature of the murder. If, for example, a
murder occurs during a gang incident, there is less likelihood of the death
penalty being sought or imposed for a number of reasons. There may be
some degree of fault on the part of the murder victim, there may be a
problem with the credibility of witnesses to the crime, or an unwillingness
on the part of witnesses to assist with the prosecution. If, as appears to be
the case, the percentage of non-Caucasians involved in gang members is
higher than that for Caucasians . . . statistics relating to the race of the
victim as an indicator of whether the death penalty will be sought or
imposed may be skewed. 41
Because the majority of the Capital Case Commission chose to focus exclusively on
evidence relating to the impact of a defendant’s race on the capital system, the
Commission diminished the importance of data showing that a wide discrepancy exists
on the basis of a victim’s race and/or ethnicity in Arizona’s implementation of the death
penalty. For instance, from 1995 through 1999, the percentage of indictments resulting in
death sentences for cases in which both the defendant and the victim were white was
nearly eight times higher than those cases in which both the defendant and the victim
were minorities. 42 During this same period, the percentage of indictments resulting in
death sentences for cases consisting of a minority defendant and a white victim was five
times higher than those cases consisting of a white defendant and a minority victim. 43 In
fact, in Maricopa County and the outlying counties, there was not one indictment
resulting in a death sentence for a case in which the defendant was white, but the victim
was a minority. 44 In contrast, the percentage of indictments resulting in death sentences
40

See id. at 26-27, 29.
Id. at 27.
42
Data Set II, supra note 17, at 15. In Arizona, where a white defendant was indicted for killing a white
individual, the percentage of indictments resulting in death sentences was 9.1%. Whereas, where a
minority was indicted for killing another minority, the percentage of indictments resulting in death
sentences was 1.2%. Id.
43
Id. at 15 (noting that the percentage of indictments resulting in death sentences for minority defendantwhite victim cases was 10.3%, while the percentage for white defendant-minority victim cases was 2.0%).
44
Id.
41

284

for cases in which the defendant was a minority, but the victim was white in these two
jurisdictions was 7.5% and 30.0%, respectively. 45 According to the Commission’s own
data, prosecutors state-wide also opted to seek the death penalty less frequently when the
homicide victim was a minority, more frequently when the victim was white. 46 Judges
also opted to impose the death penalty less frequently when the homicide victim was a
minority than when the homicide victim was white. 47 Significantly, only one of the 316
first-degree murder indictments in which the victim was Hispanic led to a death
sentence. 48 The State’s own evidence therefore leaves us to question the Capital Case
Commission’s conclusion that any suggestion of racial bias in Arizona’s death penalty
system appears “unwarranted.”
The problem with the Commission’s focus on the defendant’s race to the exclusion of any
consideration of the victim’s race is that: (1) the victim’s race itself may, in fact, indicate
that Arizona’s capital system is not race-neutral, and (2) it ignores the combined impact
that the race of the defendant and the race of the victim may have on the system. The fact
that minorities may be under-represented in Arizona’s death row population does not
necessarily mean the State of Arizona applies the death penalty in a “race-neutral”
manner. 49 To fully understand racial discrimination within the criminal justice system, it
is crucial to consider the race and/or ethnicity of the defendant and the victim, and the
interplay between the two.
Research over the past decade demonstrates that discrimination may stem not only from
the defendant’s race and/or ethnicity, but also from the victim’s. 50 Lower death sentence
rates for cases in which the victim was a minority and especially low rates for cases in
which both the defendant and victim were minorities may be explained by “a traditionally
racially discriminatory view in which [a minority] life is valued less highly than white
life, or in which the white-dominated social structure is less threatened by [minority]victim homicide.” 51
While disparities surrounding the race of victims are one piece of the puzzle, the
combined effect of the defendant’s race and the victim’s race seems to matter greatly in
Arizona. The Commission’s data from 1995 through 1999 shows:
(1)
(2)

Minority defendants who murder white victims are most likely to be
sentenced to death;
White defendants who murder white victims are the next most frequent
group to be sentenced to death; and

45

Id.
Id.
47
Id. (denoting the percentage of cases in which the judge decided to impose the death penalty on the
basis of the defendant and victim’s race/ethnicity).
48
CAPITAL CASE COMMISSION, supra note 16, at 29.
49
See Blume, supra note 8, at 167; CAPITAL CASE COMMISSION, supra note 16, at 27 (“[A] Caucasian
defendant who commits a murder similar to that committed by a non-Caucasian defendant is slightly more
likely to receive the death penalty than a non-Caucasian defendant.”).
50
Blume, supra note 8; see also Ernie Thomson, Discrimination and the Death Penalty in Arizona, 22
CRIM. JUST. REV. 65 (1997).
51
Blume, supra note 8, at 202.
46

285

(3)

Minority defendants who murder minority victims are the least likely to be
sentenced to death. 52

Given that murders are generally intra-racial (i.e., involve a defendant and victim of the
same race/ethnicity), prosecutors’ reluctance to seek the death penalty as well as judges’
to impose the death penalty in cases involving a minority defendant and minority victim
operate to reduce minority death-row populations. 53
Nonetheless, even after unanimously agreeing that each participant in Arizona’s criminal
justice system has a responsibility to promote practices that guarantee race-neutral
decisions for both capital defendants and victims, 54 the Commission refused to recognize
that the race and/or ethnicity of the victim is an integral component in the assessment of
racial bias in its capital system. 55
In our analysis of this recommendation, we do not foreclose the possibility that racial
disparities may arise from other factors, such as the composition of the jury or the
circumstances of the crime; accordingly, the State of Arizona should thoroughly study
and consider those other factors as well.
2. The Commission on Minorities in the Judiciary
In addition to the Capital Case Commission’s recommendations, the State of Arizona has
devised and continues to devise strategies that strive to eliminate racial discrimination
within its judicial system. Recognizing a need to eliminate barriers to racial equality and
to increase the number of minorities within the judiciary, the Arizona Supreme Court
created the Commission on Minorities in the Judiciary. 56 Specifically, the Commission is
mandated to develop programs that:
(1)

(2)

Achieve a meaningful increase in the number of vendors under contract to
the Administrative Office of the Courts (AOC) who employ minority staff
and professionals to provide specialized psychological, and therapeutic
treatment services for minority youth offenders;
Where appropriate, encourage a meaningful increase in the number of
minorities employed throughout the judicial department as clerical,
administrative and professional staff, with priority given to efforts to
recruit qualified minority juvenile and adult probation officers and staff;

52

See Data Set II, supra note 17, at 15 (noting that from 1995 through 1999, the percent of indictments
resulting in death sentences was 10.3% for minority defendant-white victim cases, 9.1% for white
defendant-white victim cases, and 1.2% for minority defendant-minority victim cases). But see Blume,
supra note 8, at 197 (indicating that in Arizona from 1977-2000, the death sentence rates were highest for
white defendant-white victim cases, followed by minority defendant-white victim cases, with minority
defendant-minority victim cases having the lowest death sentence rates).
53
Blume, supra note 8, at 167.
54
CAPITAL CASE COMMISSION, supra note 16, at 27 (emphasis added). The Capital Case Commission
also urged participants in the system to use empirical data from Data Sets I and II in internal reviews and
discussions regarding the death penalty process. Id.
55
Id. at 26-27.
56
State of Arizona Supreme Court, Commission on Minorities in the Judiciary, at
http://www.supreme.state.az.us/courtserv/ComMinorities/minorities.htm (last visited Mar. 16, 2006).

286

(3)

(4)
(5)

(6)

Coordinate with other public and private sector programs that seek to
address the problems created by the over-representation of minority youth
in the juvenile justice system;
Institute a judicial candidates’ career conference to provide information
and training for minority applicants who are seeking judicial positions;
Encourage minority group members to obtain internships, clerkships, and
participate in other career development and training programs for judicial,
legal and law-related positions; and
Make recommendations to the Arizona Judicial Council that help the
judicial department become more accessible to all people. 57

In 1994, the Commission on Minorities in the Judiciary undertook a two-year review of
the impact of racial and/or ethnic bias in the Arizona court system, considering both
testimonial and documentary evidence. 58 At its conclusion, then-Chair Gerald Richard II
wrote to Arizona Supreme Court Chief Justice Stanley J. Feldman that:
Although the magnitude of the problems appear to be insurmountable at
times, we are greatly heartened by the enthusiasm, perseverance and
goodwill of all who have made a commitment to eradicate this moral
blight from the Judicial Department. 59
Since then, although the Commission has concentrated on minority youth in the juvenile
justice system, the Commission also has focused on areas pertaining to racial and/or
ethnic equality and understanding. Those efforts include, but are not limited to: judicial
appointment workshops for minorities, the posting of all judicial announcements on the
Arizona Judicial Branch website, judicial clerkship workshops at state universities and
law schools for minority students, incorporating a cultural competency component in the
New Judges Orientation, monitoring judicial appointments, and assisting in the creation
of the Committee to Study Interpreter Issues in the Arizona Courts and the Arizona Court
Interpreter Funding Committee. 60
3. The Strategic Agenda 2005-2010
Recently, Arizona Supreme Court Chief Justice Ruth V. McGregor set a goal of
“Providing Access to Swift and Fair Justice” in the judiciary’s 2005-2010 Strategic
Agenda, in part to address bias in the judicial system. 61 Specifically, the initiative
outlined under this goal calls for the judicial system to “[c]ontinue to strive for a justice
system in Arizona that is free from actual or perceived racial, ethnic, gender, or economic
bias,” by:

57

ARIZ. CODE OF JUD. ADMIN. § 1-107(A) (2005); State of Arizona Supreme Court, Commission on
Minorities in the Judiciary, at http://www.supreme.state.az.us/courtserv/ComMinorities/minorities.htm (last
visited Mar. 16, 2006).
58
Ariz. Sup. Ct. Comm’n on Minorities, Progress Report, supra note 28 (letter to Chief Justice Stanley
G. Feldman from Gerald Richard II, Commission Chair, dated May 15, 1996).
59
Id.
60
See Strategic Planning Session, supra note 29; Arizona Supreme Court, Update, Aug. 2000.
61
Strategic Agenda, supra note 31, at 2, 4.

287

(1)
(2)
(3)

(4)

Enhancing communication between the courts and minority communities;
Providing continuing education to the judiciary and judicial staff on issues
of cultural and racial diversity;
Increasing the diversity of the judiciary at all levels to reflect the
communities it serves while maintaining the highest level of judicial
qualifications; and
Addressing the over-representation of minority youth in the justice system
through the “Building Blocks” initiative. 62

While laudable, none of the initiatives proposed to date include any investigations or
evaluations of the impact of racial discrimination in the criminal justice system; nor do
any of the initiatives appear to be predicated upon any past investigations or
evaluations. 63 Such investigations should be done.
4. Conclusion
While the State of Arizona has taken significant steps to comply with this
recommendation, including the investigation and evaluation of racial bias by the Capital
Case Commission, the creation of the Commission on Minorities in the Judiciary, and the
outlining of initiatives to address racial bias in the judiciary by the Arizona Supreme
Court, more can and should be done. On one hand, the judiciary remains cognizant of an
on-going need to eliminate racial bias (which is likely to seep into the administration of
the death penalty), while on the other, the Capital Case Commission and the Office of the
Attorney General have refused to recognize any significant racial bias within the death
penalty process. Given the racial discrepancies evidenced in the implementation of the
death penalty on the basis of a victim’s race and the relationship between the defendant
and victim’s race, the State of Arizona should reevaluate its response to the evidence
showing the impact of race on its capital system, and develop new strategies to eliminate
these racial disparities. The Commission also may wish to include in its reevaluation all
first-degree murder indictments occurring in the wake of Ring v. Arizona, 64 which
spurred significant changes to Arizona’s capital sentencing statute, and shifted the
authority to impose the death penalty from judge to jury.
Given that the State of Arizona has previously examined the impact of racial
discrimination in its criminal justice system, but needs to develop new strategies that
strive to eliminate the impact of racial discrimination, the State of Arizona is only in
partial compliance with Recommendation #1.
In addition, based on the above information, the Arizona Death Penalty Assessment
Team makes the following recommendation: the State of Arizona should provide funding
for the completion and public release of a study of the administration of its death penalty
system to determine the existence or non-existence of unacceptable disparities, socioeconomic, racial, geographic, or otherwise.

62
63
64

Id. at 5.
See id. at 4.
536 U.S. 584 (2002).

288

B. Recommendation #2
Jurisdictions should collect and maintain data on the race of defendants and
victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all
potential capital cases (regardless of whether the case is charged,
prosecuted, or disposed of as a capital case). This data should be collected
and maintained with respect to every stage of the criminal justice process,
from reporting of the crime through execution of the sentence.

In conjunction with the mandate of the Capital Case Commission to ensure the just and
timely implementation of the death penalty, the Commission, with the assistance of the
Center for Urban Inquiry at Arizona State University, collected and maintained data on
the race of the defendant and victim, and on aggravating and mitigating circumstances,
but not on the nature and strength of the evidence for all potential capital cases at all
stages of the proceedings. 65 In its December 2002 Final Report, Capital Case
Commission members recommended that data continue to be compiled by the Attorney
General’s Office and the Center for Urban Inquiry. 66 According to Peg Bortner, the
Director of the Center for Urban Inquiry, the Capital Case Commission, in conjunction
with the Center for Urban Inquiry, is working on a sophisticated statistical analysis for a
dataset comprised of all individuals indicted for first-degree murder in Arizona for the
five-year period spanning from January 1, 1995 to December 31, 1999. The Center is
conducting in-depth analyses for each of these cases at every stage of the process,
including the: (1) prosecutorial decision to death notice individuals indicted for firstdegree murder; (2) prosecutorial decision to take death-noticed individuals to trial or
offer plea agreement; (3) jury decision to convict (for first-degree murder) death-noticed
individuals; and (4) judicial decision to sentence to death. 67
Additionally, the Arizona Department of Corrections compiles a list of prisoners
currently serving death sentences detailing each prisoner’s name, corrections number,
ethnicity, date of birth, date of imprisonment, and county of conviction. 68 The
Department of Corrections also has collected data and created profiles for inmates
executed prior to 1992. 69 These profiles consist of the following data: name; corrections
number; birth-date; nationality; religion; date, time, and method of execution; county of
conviction; crime details; and occupation, but do not include information on the race of
the victim, all aggravating or mitigating circumstances, or the nature and strength of
evidence presented at trial. 70
65

See CAPITAL CASE COMMISSION, supra note 16, at 24.
Id.; Data Set I, supra note 17, at v (examining the characteristics of 230 Arizona death sentence cases
from 1974 through July 1, 2000); Data Set II, supra note 17, at v (focusing on the first-degree murder
indictments in Arizona from 1995 to 1999 and comparative analyses of those cases).
67
Email from Peg Bortner, Director of the Arizona State University Center for Urban Inquiry (Nov. 30,
2004).
68
Arizona
Department
of
Corrections,
Death
Row
Information,
at
http://www.azcorrections.gov/DeathRow/DeathRowMain.asp (last visited on Mar. 16, 2006).
69
Arizona
Department
of
Corrections,
Executed
Inmates,
at
http://www.azcorrections.gov/DeathRow/Executed.htm (last visited on Mar. 16, 2006).
70
Id.
66

289

As the State of Arizona only collects and maintains data relating to the race of defendants
and victims, and on aggravating and mitigating circumstances, the State of Arizona is in
partial compliance with Recommendation #2.
C. Recommendation #3
Jurisdictions should collect and review all valid studies already undertaken
to determine the impact of racial discrimination on the administration of the
death penalty and should identify and carry out any additional studies that
would help determine discriminatory impacts on capital cases.
In
conducting new studies, states should collect data by race for any aspect of
the death penalty in which race could be a factor.

To the best of our knowledge, the State of Arizona is not currently collecting and
reviewing all valid studies already undertaken to determine the impact of racial
discrimination on the death penalty. As discussed in Recommendation #2, however, the
Capital Case Commission, through the Center for Urban Inquiry, is working on a
sophisticated statistical analysis to help determine the impact of race in capital sentencing
for a dataset comprised of all individuals indicted for first-degree murder in Arizona for
the five-year period from January 1, 1995 to December 31, 1999. The Center is
conducting in-depth analyses for each of these cases at every stage of the process,
including the: (1) prosecutorial decision to death notice individuals indicted for firstdegree murder; (2) prosecutorial decision to take death-noticed individuals to trial or
offer plea agreement; (3) jury decision to convict (for first-degree murder) death-noticed
individuals; and (4) judicial decision to sentence to death. 71
In 2002, while investigating the impact of racial bias in Arizona’s criminal justice
system, the Capital Case Commission relied solely on statistical evidence compiled and
analyzed by its Research Subcommittee, and did not review all valid studies already
undertaken to assess the impact of racial bias on the administration of the death penalty. 72
However, the Commission did collect and synthesize data by the defendant and victim’s
race/ethnicity for various decision-making points in the death penalty process, including,
but not limited to, the return of the grand jury indictment, the prosecutorial decision to
seek the death penalty, and the judicial decision to impose the death penalty. 73
Based on this information, the State of Arizona is only in partial compliance with
Recommendation #3.
D. Recommendation #4
Where patterns of racial discrimination are found in any phase of the death
penalty administration, jurisdictions should develop, in consultation with
legal scholars, practitioners, and other appropriate experts, effective
remedial and prevention strategies to address the discrimination.
71

Email from Peg Bortner, Director of Arizona State University Center for Urban Inquiry (Nov. 30,
2004).
72
See CAPITAL CASE COMMISSION, supra note 16, at 26-27.
73
Data Set II, supra note 17, at v, 15.

290

The data collected and reviewed by the Capital Case Commission appears to disclose a
pattern of racial discrimination in Arizona’s implementation of the death penalty. From
1995 through 1999, the percentage of indictments actually resulting in death sentences
for cases in which both the defendant and the victim were white was nearly eight times
higher than those cases in which both the defendant and the victim were minorities. 74
During this same period, the percentage of indictments resulting in death sentences for
cases consisting of a minority defendant and a white victim was five times higher than
those cases consisting of a white defendant and a minority victim. 75 Indeed, in Maricopa
County and the outlying counties, there was not a single indictment resulting in a death
sentence where the defendant was white, but the victim was a minority. 76 Across the
State, prosecutors chose to seek the death penalty less frequently when the homicide
victim was a minority; while judges chose to impose the death penalty less frequently
when the homicide victim was a minority. 77
Because the Capital Case Commission asserted that “[s]tatistics relating to the race of the
victim are not necessarily informative regarding racism” and that “[a]n analysis of
whether race plays a role in the process is more appropriately focused on the race of the
defendant,” the Commission discounted the importance of research noting the
relationship between racial bias and a victim’s race/ethnicity. 78 Consequently, in its
Final Report, the Capital Case Commission only recommended that participants in the
criminal justice system promote practices that ensure race-neutral decisions are made in
deciding to seek or impose the death penalty in regards to both defendants and victims,
and that participants use the empirical data gathered by the Commission for internal
reviews and discussions. 79 The Capital Case Commission failed to recommend any
remedial or preventive strategies to address any racial disparities.
Because Arizona is not currently developing remedial and preventative strategies to
address the apparent racial disparities in its administration of the death penalty, the State
does not meet the requirements of Recommendation #4.
E. Recommendation #5
Jurisdictions should adopt legislation explicitly stating that no person shall
be put to death in accordance with a sentence sought or imposed as a result
of the race of the defendant or the race of the victim. To enforce such a law,
jurisdictions should permit defendants and inmates to establish prima facie
cases of discrimination based upon proof that their cases are part of
established racially discriminatory patterns. If such a prima facie case is
74

Data Set II, supra note 17, at 15. In Arizona, where a white defendant was indicted for killing a white
individual, the percentage of indictments resulting in death sentences was 9.1%. Whereas, where a
minority was indicted for killing another minority, the percentage of indictments resulting in death
sentences was 1.2%. Id.
75
Id. (noting that the percentage of indictments resulting in death sentences for minority defendant-white
victim cases was 10.3%, while the percentage for white defendant-minority victim cases was 2.0%).
76
Id.
77
Id. (denoting the percentage of cases in which the prosecutor decided to seek and judges decided to
impose the death penalty on the basis of the defendant and victim’s race/ethnicity).
78
CAPITAL CASE COMMISSION, supra note 16, at 27.
79
Id.

291

established, the State should have the burden of rebutting it by substantial
evidence.

The State of Arizona has not adopted legislation explicitly stating that no person shall be
put to death in accordance with a sentence sought or imposed as a result of the race of the
defendant or the race of the victim. Therefore, the State of Arizona is not in compliance
with Recommendation #5.
F. Recommendation #6
Jurisdictions should develop and implement educational programs
applicable to all parts of the criminal justice system to stress that race
should not be a factor in any aspect of death penalty administration. To
ensure that such programs are effective, jurisdictions also should impose
meaningful sanctions against any State actor found to have acted on the
basis of race in a capital case.

In December 2000, then-Attorney General Janet Napolitano, along with the Tucson
Police Officers Association, the Arizona Conference of Police and Sheriffs, the Arizona
Association of Chiefs of Police, the Latino Peace Officers Association, the National
Organization of Black Law Enforcement Executives (Arizona Chapter), the Tucson
Police Department, the Phoenix Law Enforcement Association, the Arizona Sheriffs
Association, the Associated Highway Patrolmen of Arizona, the Fraternal Order of
Police, and the Arizona County Attorneys and Sheriffs Association, issued a declaration
condemning racial profiling and resolving that law enforcement agencies must provide
training on prohibited profiling practices. 80 A month later, the Attorney General’s Office
issued its Report on Racial Profiling, reiterating the need for law enforcement training on
racial profiling, including training pertinent to cultural differences and, when necessary,
foreign language instruction. 81 The extent to which these educational opportunities were
incorporated into existing or developing law enforcement policies and then implemented
is unknown. 82
However, eighteen Arizona law enforcement agencies have been accredited or are in the
process of obtaining accreditation by the Commission on Accreditation for Law
Enforcement Agencies, Inc. (CALEA), which requires law enforcement agencies to adopt
policies on racial sensitivity. 83 Specifically, CALEA requires certified law enforcement
agencies to establish a written directive that prohibits bias-based profiling and requires
training on how to avoid biased-based profiling. 84
80

OFFICE OF THE ATTORNEY GENERAL, REPORT ON RACIAL PROFILING (Jan. 2001), at 12 (Declaration of
Arizona Law Enforcement Condemning Racial Profiling).
81
Id. at 7.
82
Most recently, in 2005, the Civil Rights Division of the Arizona Attorney General’s Office provided a
“Racial Profiling Policy Guidance” to law enforcement agencies across Arizona in order to assist law
enforcement agencies in creating or revising internal procedures on racial profiling. ARIZONA ATTORNEY
GENERAL TERRY GODDARD 2005 ANNUAL REPORT, at 39.
83
CALEA Online, Agency Search, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited
Nov. 3, 2005).
84
COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, INC., STANDARDS FOR LAW
ENFORCEMENT AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
ACCREDITATION PROGRAM, at 1-4 (Standard 1.2.9) (4th ed. 2001).

292

Additionally, the Commission on Minorities in the Judiciary has incorporated a cultural
competency component for new judges’ orientation. 85 However, the content and scope
of this training is unknown.
Although it appears that the State of Arizona has developed and implemented several
programs to stress that race should not be a factor in Arizona’s criminal justice system,
the programs do not appear to specifically address the role of race in the administration of
the death penalty nor do the programs apply to all parts of the criminal justice system.
Consequently, the State of Arizona is only in partial compliance with Recommendation
#6.
G. Recommendation #7
Defense counsel should be trained to identify and develop racial
discrimination claims in capital cases. Jurisdictions also should ensure that
defense counsel is trained to identify biased jurors during voir dire.

The State of Arizona does not require defense attorneys to participate in training to
identify and develop racial discrimination claims in capital cases and identify biased
jurors during voir dire. However, Rule 6.8 of the Arizona Rules of Criminal Procedure
does mandate that appointed counsel complete six hours of training in the area of capital
defense, within one year prior to the initial appointment, and twelve hours of capital
defense training within one year prior to any subsequent appointment. 86
The State Bar of Arizona offers at least one training program, entitled “More Sex,
Murder, and the Media,” that deals with various aspects of the death penalty, including
the decision to seek the death penalty. 87 While the Maricopa County Office of the Public
Defender, in conjunction with other indigent defense offices, provides a variety of
training relevant to capital defense, we were unable to determine whether they or the
State Bar’s program touched on the subject of identifying and developing racial
discrimination claims or identifying biased jurors during voir dire. 88
Although training on the issue of race in capital litigation may be available, the State of
Arizona does not require defense counsel to participate in training to specifically identify
and develop racial discrimination claims in capital cases and to identify biased jurors
during voir dire. The State of Arizona, therefore, fails to comply with Recommendation
#7.
H. Recommendation #8
85

See Strategic Planning Session, supra note 29.
ARIZ. R. CRIM. P. 6.8(B)(1)(iv), (2).
87
See
State
Bar
of
Arizona,
My
AzB@r,
at
http://www.legalspan.com/AZBar/catalog.asp?UGUID=&CategoryID=220000618723983143116&ItemID
=20050106-792243-170848 (last visited Feb. 26, 2006). The program occasionally is available live and
also is available as an audio/video training program. Id.
88
See OFFICE OF THE MARICOPA COUNTY PUBLIC DEFENDER 2001 ANNUAL REPORT, at
http://www.pubdef.maricopa.gov/ (last visited Feb. 26, 2006); OFFICE OF THE MARICOPA COUNTY PUBLIC
DEFENDER 2002 ANNUAL REPORT, at http://www.pubdef.maricopa.gov/ (last visited Feb. 26, 2006).
86

293

Jurisdictions should require jury instructions that it is improper to consider
any racial factors in their decision making and that they should report any
evidence of racial discrimination in jury deliberations.

Neither the Revised Arizona Jury Instructions (Criminal 3rd) nor Arizona case law
requires jury instructions to inform jurors that it is improper to consider any racial factors
in their decision making and that they should report any evidence of racial discrimination
in jury deliberations.
Moreover, because Arizona’s capital sentencing scheme previously vested the trial judge
with the authority to determine if a capital defendant received a sentence of life or death,
Arizona currently has no pattern jury instructions specifically tailored to a capital trial.89
However, due to the United States Supreme Court’s decision in Ring v. Arizona, which
shifted the responsibility to impose the death penalty from judge to jury, the Criminal
Jury Instruction Committee of the State Bar of Arizona is in the process of drafting
pattern jury instructions for capital cases.90 A portion of these proposed instructions,
which has been approved by the Board of Governors of the State Bar of Arizona,
provides the following guidance to jurors in deciding whether an aggravating
circumstance exists during the first phase of a capital defendant’s sentencing hearing:
[Y]ou are not to be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion, or public feeling. Race, color, religion,
national ancestry, gender or sexual orientation should not influence you. 91
During the Penalty Phase, in which the jury decides whether to impose a sentence of life
or death, the proposed pattern jury instructions, approved in part by the Board of
Governors of the State Bar of Arizona, reiterate to jurors that:
You must not be influenced by your personal feelings of bias or prejudice
for or against the Defendant or any person involved in this case on the
basis of anyone’s race, color, religion, national ancestry, gender or sexual
orientation. 92
Although the State Bar of Arizona is promulgating pattern jury instructions that direct
jurors as to the impropriety of considering any racial factors in their decision-making, the
draft pattern jury instructions, as of yet, do not require jury instructions to denote that
jurors should report any evidence of racial discrimination in deliberations. The State of
Arizona, therefore, at best, only partially meets the requirements of Recommendation #8.

89

See Ring v. Arizona, 536 U.S. 584, 588-89, 592-93 (2002).
Unlike other states, the Supreme Court of Arizona does not issue any approvals of its own in regards to
pattern jury instructions.
See The State Bar of Arizona, Criminal Jury Instructions, at
http://www.myazbar.org/SecComm/Committees/CRJI/crji.cfm (last visited March 3, 2006).
91
Draft Capital Case Sentencing Instructions, Eligibility Phase, 1.2 Duties of the Jury (Feb. 20, 2006)
(approved by the Board of Governors on May 20, 2005) (on file with author).
92
Draft Capital Case Sentencing Instructions, Penalty Phase, 2.1 Nature of Hearing and Duties of Jury
(Feb. 20, 2006) (approved by the Board of Governors on May 20, 2005) (on file with author).
90

294

I. Recommendation #9
Jurisdictions should ensure that judges recuse themselves from capital cases
when any party in a given case establishes a reasonable basis for concluding
that the judge’s decision making could be affected by racially discriminatory
factors.

Canon 3 of the Arizona Code of Judicial Conduct requires a judge to “disqualify himself
or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned, including but not limited to instances where . . . the judge has a personal bias
or prejudice concerning a party or a party’s lawyer.” 93 The number of judges who have
actually disqualified themselves due to racial bias or prejudice is unknown.
Consequently, it is impossible to assess whether Canon 3 sufficiently ensures that judges
rightfully disqualify themselves, as required by Recommendation #9.
Significantly, the Arizona Commission on Judicial Conduct is the independent state
agency charged with resolving complaints filed against judges on the Arizona Supreme
Court, the Court of Appeals, the Superior Court, justices of the peace, and municipal
courts. 94 Under the Commission’s new rules, effective January 2006, complaints against
judges will be posted on the Commission’s website upon their resolution. 95 No
complaints resolved and posted as of March 2006 included allegations of racial and/or
ethnic bias.
J. Recommendation #10
States should permit defendants or inmates to raise directly claims of racial
discrimination in the imposition of death sentences at any stage of judicial
proceedings, notwithstanding any procedural rule that otherwise might bar
such claims, unless the State proves in a given case that a defendant or
inmate has knowingly and intelligently waived the claim.

The State of Arizona does not make any exceptions to the normal procedural rules for
claims of racial discrimination in the imposition of a death sentence. Specifically, a
defendant’s failure to raise a claim of racial discrimination that could have been raised at
trial or on appeal will not be reviewed in a post-conviction proceeding unless the
defendant can show that:
(1)

S/he is being held in custody after the sentence imposed has expired;

93

ARIZ. CODE OF JUD. CONDUCT Canon 3(E)(1)(a); see also ARIZ. CODE OF JUD. CONDUCT Canon
3(B)(5) (requiring judges to perform their judicial duties without “bias or prejudice” or “by words or
conduct” that do not “manifest bias or prejudice, including but not limited to bias or prejudice based upon
race [or] national origin”).
94
Supreme Court of Arizona, Overview of the Arizona Commission on Judicial Conduct, available at
http://www.supreme.state.az.us/ethics/Commission_on_Judicial_Conduct_Overview.htm
(last
visited
March 18, 2006).
95
See Arizona Supreme Court, Commission on Judicial Conduct, Judicial Complaints, available at
http://www.supreme.state.az.us/ethics/Complaints/Judicial_Complaints.htm (last visited March 17, 2006);
ARIZ. COMM’N ON JUD. CONDUCT R. 9(a) (internet edition).

295

(2)
(3)

(4)

(5)

Newly discovered material facts probably exist and such facts probably
would have changed the verdict or sentence;
The defendant’s failure to file a notice of post-conviction relief of-right or
notice of appeal within the prescribed time was without fault on the
defendant’s part;
There has been a significant change in the law that if determined to apply
to the defendant’s case would probably overturn the defendant’s
conviction or sentence;
The defendant demonstrates by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found the defendant guilty of the
underlying offense beyond a reasonable doubt, or that the court would not
have imposed the death penalty. 96

Based on this information, the State of Arizona fails to comply with Recommendation
#10.

96

ARIZ. R. CRIM P. 32.1(d)-(h), 32.2(b); see also ARIZ. REV. STAT. §§ 13-4232(B), 13-4231(4)–(7)
(2005).

296

CHAPTER THIRTEEN
MENTAL RETARDATION AND MENTAL ILLNESS
INTRODUCTION TO THE ISSUE
Mental Retardation
The ABA unconditionally opposes the imposition of the death penalty on offenders with
mental retardation. In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme
Court held it unconstitutional to execute offenders with mental retardation.
This holding does not, however, guarantee that no one with mental retardation will be
executed. The American Association on Mental Retardation defines a person as mentally
retarded if the person’s IQ (general intellectual functioning) is in the lowest 2.5 percent
of the population; if the individual is significantly limited in his/her conceptual, social,
and practical adaptive skills; and if these limitations were present before the person
reached the age of 18. Unfortunately, some states do not define mental retardation in
accordance with this commonly accepted definition. Moreover, some states impose
upper limits on IQ that are lower than the range (approximately 70-75 or below) that is
commonly accepted in the field. In addition, lack of sufficient knowledge and resources
often preclude defense counsel from properly raising and litigating claims of mental
retardation. And in some jurisdictions, the burden of proving mental retardation is not
only placed on the defendant but also requires proof greater than a preponderance of the
evidence.
Accordingly, a great deal of additional work is required to make the holding of Atkins,
i.e., that people with mental retardation should not be executed, a reality.
Mental Illness
Although mental illness should be a mitigating factor in capital cases, juries often
mistakenly treat it as an aggravating factor. States, in turn, often have failed to monitor
or correct such unintended and unfair results.
State death penalty statutes based upon the Model Penal Code list three mitigating factors
that implicate mental illness: (1) whether the defendant was under "extreme mental or
emotional disturbance" at the time of the offense; (2) whether "the capacity of the
defendant to appreciate the criminality (wrongfulness) of his[/her] conduct or to conform
his[/her] conduct to the requirements of law was impaired as a result of mental disease or
defect or intoxication"; and (3) whether "the murder was committed under circumstances
which the defendant believed to provide a moral justification or extenuation of his
conduct."
Often, however, these factors are read to jurors without further explanation or without
any discussion of their relationship to mental illness. Without proper instructions, most
jurors are likely to view mental illness incorrectly as an aggravating factor; indeed,
research indicates that jurors routinely consider the three statutory factors listed above as
297

aggravating, rather than mitigating, factors in cases involving mental illness. One study
found specifically that jurors’ consideration of the factor, “extreme mental or emotional
disturbance,” in capital cases correlated positively with decisions to impose death
sentences.
Mental illness particularly weighs against a criminal defendant when it is considered in
the context of determining "future dangerousness," often a criterion for imposing the
death penalty. One study showed that a judge's instructions on future dangerousness led
mock jurors to believe that the death penalty was mandatory for mentally ill defendants.
In fact, only a small percentage of mentally ill individuals are dangerous, and most of
them respond successfully to treatment. But the contrary perception unquestionably
affects decisions in capital cases.
In addition, the medication of some mentally ill defendants in connection with their trials
often leads them to appear to be lacking in emotion, including remorse. This, too, can
lead them to receive capital punishment.
Mental illness can affect every stage of a capital trial. It is relevant to the defendant's
competence to stand trial; it may provide a defense to the murder charge; and it can be
the centerpiece of the mitigation case. Conversely, when the judge, prosecutor, and
jurors are misinformed about the nature of mental illness and its relevance to the
defendant's culpability and life experience, tragic consequences often follow for the
defendant.

298

I. FACTUAL DISCUSSION
A. Mental Retardation
In concert with the United States Supreme Court’s 1989 decision in Penry v. Lynaugh, 1
Arizona once considered mental retardation as mitigating evidence during the penalty
phase of a capital trial, but not “as an absolute constitutional bar to the imposition of the
death penalty.” 2 In 2001, a year before the U.S. Supreme Court banned the execution of
all mentally retarded offenders in Atkins v. Virginia, 3 the Arizona legislature adopted
section 13-703.02 of the Arizona Revised Statutes (A.R.S.), prohibiting the imposition of
the death penalty on any individual with mental retardation and outlining the procedures
by which the State should determine whether a capital defendant has mental retardation. 4
As initially adopted, the statute dealt with only those cases in which the State had filed a
notice of intent to seek the death penalty after the statute’s effective date of April 26,
2001. 5 However, in 2002, in response to Atkins, the legislature amended the statute to
encompass all capital sentencing proceedings, including re-sentencing proceedings. 6
1. Definition of Mental Retardation
Section 13-703.02 of the A.R.S. defines mental retardation as “a condition based on a
mental deficit that involves significantly subaverage general intellectual functioning,
existing concurrently with significant impairment in adaptive behavior, where the onset
of the foregoing conditions occurred before the defendant reached the age of eighteen.” 7
Under this statute, significantly subaverage general intellectual functioning is defined as
“a full scale intelligence quotient of seventy or lower,” 8 while adaptive behavior is
defined as “the effectiveness or degree to which the defendant meets the standards of
personal independence and social responsibility expected of the defendant’s age and
cultural group.” 9
The Arizona Supreme Court has further specified that mental retardation “is not curable
or controllable by medication.” 10
2. Pre-Trial Determinations of Mental Retardation
Whenever the State files a notice of intent to seek the death penalty, the court has an
obligation to appoint a prescreening psychological expert 11 (the prescreening expert) to
1

492 U.S. 302 (1989).
See State v. Grell, 66 P.3d 1234, 1240 (Ariz. 2003).
3
536 U.S. 304 (2002).
4
See id.; ARIZ. REV. STAT. § 13-703.02 (2006).
5
See State v. Dann, 79 P.3d 58, 62 n. 3 (Ariz. 2003); ARIZ. REV. STAT. § 13-703.02 (2006); 2001 Ariz.
Legis. Serv. 260 (S.B. 1551) (West).
6
See Dann, 79 P.3d at 62 n. 3. Note that there is no requirement that a defendant be afforded a hearing
on mental retardation on re-sentencing. See id.
7
ARIZ. REV. STAT. § 13-703.02(K)(3) (2006).
8
ARIZ. REV. STAT. § 13-703.02(K)(5) (2006). In determining the defendant’s IQ, the court must “take
into account the margin of error for the test administered.” Id.
9
ARIZ. REV. STAT. § 13-703.02(K)(1) (2006).
10
Dann, 79 P.3d at 63.
2

299

determine the defendant’s intelligence quotient (IQ). 12 Within ten days of testing the
defendant, the prescreening expert must provide the court with a written report detailing
the defendant’s IQ; the IQ assessment must be based upon “current community,
nationally and culturally accepted intelligence testing procedures.” 13
If the prescreening expert concludes that the defendant’s IQ is above seventy-five, the
notice of intent to seek the death penalty cannot be dismissed on the basis that the
defendant has mental retardation. 14 In such a case, the expert’s report also must be
sealed, with access only being afforded to the defendant. 15 A capital defendant whose
prescreening indicates an IQ above seventy-five may still introduce evidence of his/her
mental retardation or diminished mental capacity in the penalty phase of the trial. 16
Alternatively, if the prescreening expert concludes that the defendant has an IQ of
seventy-five or below, the trial court must order the State and the defendant to (1)
individually nominate three experts in mental retardation, 17 or (2) jointly nominate one
expert in mental retardation. 18 The trial court must then either appoint two experts, one
nominated by the State and the other by the defendant, or appoint one expert nominated
in concert by both parties. 19 The court also may opt to appoint an additional expert in
mental retardation who was not nominated by the State or the defendant. 20
After both parties have supplied the expert(s) and the court with any records germane to
the defendant’s mental retardation status,21 each mental retardation expert will examine
the defendant to determine if s/he has mental retardation.22 The examination must be
conducted in accordance with “current community, nationally and culturally accepted
physical, developmental, psychological and intelligence testing procedures.” 23 Within

11

A prescreening psychological expert is defined as a “psychologist licensed pursuant to title 32, chapter
19.1 with at least five years’ experience in the testing, evaluation and diagnosis of mental retardation.”
ARIZ. REV. STAT. § 13-703.02(K)(4) (2006).
12
ARIZ. REV. STAT. § 13-703.02(B) (2006).
13
Id.
14
ARIZ. REV. STAT. § 13-703.02(C) (2006).
15
Id. However, if the defendant introduces the report during the capital proceedings or if the defendant
is convicted of an offense in the capital proceedings and the sentence is final, the court must release the
report on the motion of any party. Id.
16
Id.
17
An expert in mental retardation is defined as a “psychologist or physician licensed pursuant to tile 32,
chapter 13, 17 or 19.1 with at least five years’ experience in the testing or testing assessment, evaluation
and diagnosis of mental retardation. ARIZ. REV. STAT. § 13-703.02(K)(2) (2006).
18
ARIZ. REV. STAT. § 13-703.02(D) (2006). The court must issue its order within ten days of the report’s
receipt. Id.
19
Id. The expert(s) nominated must be different from the prescreening expert. Id.
20
Id. The additional expert appointed by the court must be different from the prescreening expert. Id.
21
ARIZ. REV. STAT. § 13-703.02(D), (E) (2006). The records must be provided within forty-five days of
the court’s order to appoint the expert(s), or on the actual appointment of such expert(s), whichever is later,
unless the defendant or State shows good cause for an extension of time. Id.
22
ARIZ. REV. STAT. § 13-703.02(E) (2006). The examination must occur by the later of the following
two: (1) at least twenty days after the expert(s)’ receipt of the records, or (2) at least twenty days after the
deadline for providing the expert(s) with the records has passed. Id.
23
ARIZ. REV. STAT. § 13-703.02(E) (2006).

300

fifteen days of the examination, each expert must provide the trial court a written report
that includes his/her opinion “as to whether the defendant has mental retardation.” 24
If every IQ test discloses that the defendant has an IQ higher than seventy, the notice of
intent to seek the death penalty cannot be dismissed on the basis that the defendant has
mental retardation. 25 A defendant found to have an IQ higher than seventy on every IQ
test still may present proof of his/her mental retardation or diminished mental capacity at
the penalty phase of the trial, however. 26
If any IQ test indicates that the defendant has an IQ of seventy or below, a hearing must
be conducted to decide if the defendant has mental retardation. 27 During the hearing, the
defendant carries the burden of proving mental retardation by clear and convincing
evidence, unless the trial court determines that the defendant has an IQ of sixty-five or
below, in which case the defendant establishes a rebuttable presumption of mental
retardation. 28 If the court determines that the defendant has mental retardation, the State
may no longer seek the death penalty. 29 Conversely, if the court finds that the defendant
is not mentally retarded, the State may still pursue the death penalty,30 but the defendant
may present evidence of his/her mental retardation or diminished mental capacity during
the penalty phase. 31
In order to appeal the trial court’s decision regarding whether the defendant has mental
retardation, either party may file a petition for special action with the Arizona Court of
Appeals within ten days of the trial court’s determination. 32
3. Consideration of Mental Retardation Evidence at Trial
If a capital defendant objects to a prescreening evaluation, s/he waives the right to a pretrial determination of mental retardation, 33 but the defendant will be permitted to
introduce evidence of his/her mental retardation during the penalty phase of the trial. 34
Similarly, if the prescreening reveals that the defendant has an IQ above seventy-five, or
if the defendant fails to establish mental retardation by clear and convincing evidence at
the pre-trial hearing, s/he may still offer evidence of his/her mental retardation or
diminished mental capacity at the penalty phase of the trial. 35

24

Id.
ARIZ. REV. STAT. § 13-703.02(F) (2006).
26
Id.
27
ARIZ. REV. STAT. § 13-703.02(G) (2006). The hearing must occur “[n]o less than thirty days after the
experts in mental retardation submit reports to the court and before trial.” Id.
28
Id.
29
ARIZ. REV. STAT. § 13-703.02(H) (2006).
30
See id.
31
Id.
32
ARIZ. REV. STAT. § 13-703.02(I) (2006).
33
ARIZ. REV. STAT. § 13-703.02(B) (2006).
34
Id.
35
ARIZ. REV. STAT. § 13-703.02(C), (H) (2006).
25

301

4. Post-Trial Determinations of Mental Retardation
A capital defendant or death-row inmate may assert a claim of mental retardation on
direct appeal or during post-conviction proceedings, if s/he did not have an opportunity to
present evidence of mental retardation as a bar to execution during pre-trial
proceedings. 36
Prior to Atkins, Arizona courts viewed evidence of mental retardation as a mitigating
circumstance and not as “an absolute bar to execution.” 37 In light of this fact, the
Arizona Supreme Court has held that due process requires that a hearing be conducted to
determine if the defendant has mental retardation, regardless of whether the court has
already considered evidence of mental retardation. 38 However, a capital defendant is not
entitled to an automatic hearing; s/he must first show evidence of mental retardation, or at
minimum, some evidence “that raises any doubt as to whether [s/]he may be mentally
retarded.” 39 In State v. Dann, the Arizona Supreme Court indicated that an IQ below the
range of seventy to seventy-five “triggers the mental retardation inquiry.” 40
Significantly, in order to be entitled to a post-trial hearing on mental retardation, it does
not appear that the defendant must have raised the issue of mental retardation during any
court proceedings prior to Atkins, assuming s/he was not entitled to a pre-trial hearing on
mental retardation as set forth in section 13-703.02 of the A.R.S. 41
The Arizona Supreme Court has contoured the parameters of a post-trial hearing on
mental retardation by stipulating that the trial courts “should use Atkins as a guide,” and,
36

See State v. Grell, 66 P.3d 1234, 1240 (Ariz. 2003) (en banc) (remanding the case to the trial court to
determine whether the capital defendant was mentally retarded on direct appeal to the Arizona Supreme
Court); State v. Dann, 79 P.3d 58, 63 (Ariz. 2003) (denying capital defendant’s assertion on direct appeal to
the Arizona Supreme Court that he is entitled to a hearing on mental retardation). Additionally, the
defendant may petition the court to grant post-conviction relief on the grounds that the (1) the sentence was
in violation of the U.S. or Arizona Constitutions; and/or (2) there has been a significant change in the law
that if determined to apply to defendant’s case would probably overturn the defendant’s conviction or
sentence. It is important to note that claims of mental retardation raised on direct appeal or in a postconviction proceeding must meet the requirements for review as discussed in The Direct Appeal Process
and State Post-Conviction Proceedings Chapters. See infra, at Chapters Seven and Eight.
37
Grell, 66 P.3d at 1240.
38
Id.
39
Dann, 79 P.3d at 63 (concluding “as a matter of law that Dann has not met the minimum threshold
necessary to trigger an Atkins or § 13-703.02 inquiry” and thereby denying his request for a hearing on
mental retardation). The Arizona Supreme Court in this case also explained its decision to grant a hearing
on mental retardation in Grell, noting, in part, “because Grell had made a showing of subaverage
intellectual functioning, deficits in adaptive functioning, and onset before age 18—we held that due process
required that Grell’s case be remanded for an Atkins hearing to determine whether Grell had mental
retardation.” Id. at 62.
40
Id at 63. It is unclear what “triggers” the mental retardation inquiry. Dann also suggests that evidence
of all three prongs of mental retardation (i.e., subaverage intellectual functioning, deficits in adaptive
functioning, and onset before age the age of eighteen) must be presented. Id. at 62. There is no case law
that speaks to whether this post-trial hearing is mandated when a defendant has waived the pre-trial
determination.
41
See id. In State v. Dann, the Arizona Supreme Court denied Dann’s request for a hearing on mental
retardation. Id. In so doing, the Court noted that Dann “never alleged mental retardation and did not offer
any evidence demonstrating even the possibility of mental retardation.” Id. Nonetheless, it appears that if
Dann had introduced evidence at any point in the proceedings indicating he may have mental retardation,
the Court would have held otherwise. See id.

302

to the extent practical, adhere to the procedures outlined in section 13-703.02 of the
A.R.S. 42 With respect to Atkins, the Court specifically has highlighted Atkins’ assertion
that “clinical definitions of mental retardation require not only subaverage intellectual
functioning, but also significant limitations in adaptive skills such as communication,
self-care, and self-direction that became manifest before age 18” and that an IQ level
below the range of seventy to seventy-five denotes subaverage intellectual functioning. 43
Arizona courts are not mandated to conduct a jury trial to resolve a defendant’s post-trial
claim of mental retardation. 44
B. Mental Disorders Other Than Mental Retardation
1. Insanity
a. The Definition of Insanity
Prior to 1993, Arizona’s definition of insanity embodied the principles outlined in the
M’Naghten 45 test for criminal insanity. 46 As codified in 1977 in former section 13-502
of the A.R.S., a defendant was insane if, at the time of the offense, s/he suffered from
“(1) [s]uch a defect of reason as not to know the nature and quality of the act, or (2) [i]f
[s/]he did know [the nature and quality of the act], that [s/]he did not know [s/]he was
doing what was wrong.” 47 In 1993, the Arizona legislature adopted a new version of
section 13-502(A), which essentially eliminated the first half of the M’Naghten test, and
enacted a new insanity defense, “guilty except insane.” 48 Today, a defendant may be
found “guilty except insane” only if “at the time of the commission of the criminal act the
person was afflicted with a mental disease or defect of such severity that the person did
not know the criminal act was wrong.” 49
b. Automatic Prescreening Evaluation
In all cases in which the State seeks the death penalty, the court must order a
prescreening evaluation of the defendant to assess whether “reasonable grounds” exist for
further examination in order to determine (1) if the defendant is competent to stand trial
and (2) if s/he was sane at the time of the alleged offense. 50

42

Grell, 66 P.3d at 1241.
Id. at 1238.
44
See Schriro v. Smith, 126 S. Ct. 7, 8-9 (2005) (holding the Ninth Circuit exceeded its authority by
requiring Arizona courts to conduct a jury trial on the issue of a defendant’s mental retardation).
45
M’Naghten’s Case, 10 Clark & Fin. 200, 8 Eng. Reprint 718 (1843).
46
State v. Tamplin, 986 P.2d 914, 916 (Ariz. Ct. App. 1999).
47
Id. (citations omitted).
48
See id.; see also Renée Melançon, Arizona’s Insane Response to Insanity, 40 ARIZ. L. REV. 287, 290,
313 (1998) (noting the changes were spurred partly in response to public outcry over the acquittal of a
defendant for the murder of his estranged wife on the grounds of insanity and the defendant’s subsequent
release after only six months of confinement in the Arizona State Hospital).
49
ARIZ. REV. STAT. § 13-502(A) (2006).
50
ARIZ. REV. STAT. § 13-703.03(A) (2006).
43

303

c. The Defense of Guilty Except Insane
Under Arizona law, legal insanity constitutes an affirmative defense.51 If a defendant
intends to raise the defense of insanity and wishes to introduce evidence at trial in support
of the defense, s/he must provide written notice of this intent to the prosecutor. 52 The
notice must include the names of all witnesses the defendant intends to call in support of
the defense, including the defendant himself. 53 The notice must be filed no later than
forty days after arraignment or ten days after the prosecutor’s disclosure, whichever is
first, unless directed otherwise by the court. 54 If the defendant fails to comply with the
requisite notice, the trial court may exercise its discretion to determine whether evidence
of the defendant’s insanity will be permitted at trial. 55
If the court determines that there is a reasonable basis to support the defendant’s plea of
guilty except insane, the court may either commit the defendant to a secure mental health
facility under the Department of Health Services, a secure county mental health
evaluation and treatment facility, or another secure licensed mental health facility for up
to thirty days for mental health evaluation and treatment. 56 If the court orders the
defendant committed to a mental health facility, s/he must be examined by an expert, 57
who, in turn, must submit the results of the examination to the court and both parties. 58 If
the court does not commit the defendant to a secure mental facility, it will order an
evaluation by an independent expert; 59 the expert then must provide the court, defense,
and prosecution with a written report of his/her findings. 60 In addition to any statutorily
mandated evaluations, both the defendant and the State are entitled to obtain additional
psychiatric examinations by other mental health experts. 61
The defendant must prove his/her insanity by clear and convincing evidence. 62 In
determining whether a defendant was insane at the time of the offense, the criminal act
must be considered “wrong” in relation to a community standard of morality, and not the
personal beliefs of the defendant. 63 Arizona law specifically prohibits the finding of a
mental disease or defect from “disorders that result from acute voluntary intoxication or
51

ARIZ. REV. STAT. § 13-502(A) (2006).
ARIZ. R. CRIM. P. 15.2(b). The notice also must be filed with the court. Id.
53
Id.
54
ARIZ. R. CRIM. P. 15.2(d)(1).
55
State v. Alford, 403 P.2d 806 (Ariz. 1965).
56
ARIZ. REV. STAT. § 13-502(B) (2006). These procedures are not limited to capital cases, but include
any case “involving the death or serious physical injury of or the threat of death or serous physical injury to
another person.” Id.
57
The expert conducting the evaluation must be licensed, have familiarity with the state’s insanity
statutes, be a specialist in mental diseases and defects, and knowledgeable in the field of insanity. Id.
58
Id.
59
As before, the independent expert conducting the evaluations must be licensed, have familiarity with
the state’s insanity statutes, be specialists in mental diseases and defects, and knowledgeable in the field of
insanity. Id.
60
Id.
61
Id. Again, the experts elected by the State or defendant must be licensed, have familiarity with the
state’s insanity statutes, be specialists in mental diseases and defects, and knowledgeable in the field of
insanity. Id.
62
ARIZ. REV. STAT. § 13-502(C) (2006).
63
State v. Tamplin, 986 P.2d 914, 916-17 (Ariz. Ct. App. 1999).
52

304

withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse
control disorders.” 64 The defense of insanity also fails to apply in “momentary,
temporary conditions arising from the pressure of the circumstances, moral decadence,
depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a
person who does not suffer from a mental disease or defect or an abnormality that is
manifested only by criminal conduct.” 65
d. Post-Verdict Actions Regarding a Defendant Found Guilty Except Insane
Upon a finding of guilty except insane, the court must commit the individual to a state
mental health facility for treatment.66 In capital cases, the individual will be placed under
the jurisdiction of the Psychiatric Security Review Board (the Board) for a term of life or
natural life. 67
However, after 120 days have passed from the individual’s date of commitment, the
individual may request a hearing before the Board to determine if s/he is eligible for
release. 68 Before the hearing, the individual seeking release, his/her attorney and a
representative of the State may select a licensed psychologist or psychiatrist to examine
the individual. 69 The results of the examination must be filed with the Board and must
include the expert’s opinion as to the individual’s mental condition and his/her
dangerousness. 70 Provided there is good cause, the Board or its Chairman also may elect
to order an independent mental health evaluation by a licensed psychologist or
psychiatrist. 71 At least fifteen days prior to the hearing, the state mental health facility or
supervising agency that is charged with the individual’s care must provide the Board with
a report on his/her mental status. 72
In any hearing, “public safety and protection are primary” and the defendant carries the
burden of proof by clear and convincing evidence. 73 During the hearing, the Board may
take one of three actions. 74 First, if the Board concludes that the individual still has a
mental disease or defect and is dangerous, the Board must deny release. 75 Second, if the
Board finds that the individual has proven by clear and convincing evidence that s/he has
no mental disease or defect and is not dangerous, the Board must grant the individual’s

64

ARIZ. REV. STAT. § 13-502(A) (2006).
Id.
66
ARIZ. REV. STAT. §§ 13-502(D); 13-3994(A), (D) (2006); see also ARIZ. R. CRIM. P. 25; ARIZ. REV.
STAT. § 13-703(A) (2006).
67
ARIZ. REV. STAT. § 13-3994(D) (2006).
68
ARIZ. REV. STAT. § 13-3994(F) (2006). Significantly, an individual cannot be confined for more than
two years without a hearing to determine whether s/he should be released. ARIZ. REV. STAT. § 13-3994(G)
(2006).
69
ARIZ. REV. STAT. § 13-3994(N) (2006).
70
ARIZ. REV. STAT. § 13-3994(N)(1), (2) (2006).
71
ARIZ. REV. STAT. § 13-3994(O) (2006).
72
ARIZ. REV. STAT. § 13-3994(I) (2006).
73
ARIZ. REV. STAT. § 13-3994(H)(1), (2) (2006).
74
ARIZ. REV. STAT. § 13-3994(F) (2006).
75
ARIZ. REV. STAT. § 13-3994(F)(1) (2006).
65

305

release. 76 Third, if the Board finds that the individual is not dangerous, but still has a
mental disease or defect or that the mental disease or defect is in stable remission, the
Board must order the individual’s conditional release. 77 Regardless if the Board orders a
release or conditional release, the individual still remains under the Board’s
jurisdiction. 78
Once the Board has made its determination, an individual must wait at least twenty
months before seeking a new release hearing, unless the hearing is sought by the Medical
Director of the state mental health facility treating the individual. 79
C. Competency to Be Executed 80
An inmate who is sentenced to death but found to be “mentally incompetent to be
executed” cannot be executed. 81 An inmate is mentally incompetent to be executed if
“due to a mental disease or defect [the inmate] is presently unaware that [s/]he is to be
punished for the crime of murder or . . . [s/]he is unaware that the impending punishment
for that crime is death.” 82
1. Determination of Competency to Be Executed
If the Director of the Arizona Department of Corrections or an attorney for the inmate or
the State believes with good reason that an inmate may be mentally incompetent to be
executed, s/he may file a motion requesting that the inmate’s mental competency be
examined. 83 The motion must include facts in support of the assertion that the inmate is
mentally incompetent and facts related to the prisoner’s conviction and sentence.84

76

ARIZ. REV. STAT. § 13-3994(F)(2) (2006). Before granting release, however, the Board must take into
consideration the individual’s criminal history. If the Board concludes that the individual “has a propensity
to reoffend,” it cannot order his/her release. Id.
77
ARIZ. REV. STAT. § 13-3994(F)(3) (2006). If an individual is conditionally released, the Board must
continue to monitor the individual. A supervised treatment plan also must be in place prior to the
individual’s release. Id.
78
ARIZ. REV. STAT. § 13-3994(F)(2),(3) (2006). Because the individual still remains under the Board’s
jurisdiction, s/he may be compelled to return to a treatment facility. See ARIZ. REV. STAT. § 13-3994(L),
(M) (2006) (noting also that a hearing will be held upon the individual’s return to the mental health
facility).
79
ARIZ. REV. STAT. § 13-3994(G) (2006).
80
In 1986, the United States Supreme Court, in Ford v. Wainwright, found that procedures for assessing
an inmate’s mental competency are in violation of the Eighth Amendment of the United States Constitution
if the procedures do the following: (1) fail to include the inmate in the “truth-seeking process;” (2) deny the
inmate the opportunity to challenge or impeach the state-appointed psychiatrists’ opinions; and (3) place
the decision on the inmate’s mental capacity wholly within the executive branch. See Ford v. Wainwright,
477 U.S. 399, 413-16 (1986).
81
ARIZ. REV. STAT. § 13-4021(A) (2006).
82
ARIZ. REV. STAT. § 13-4021(B) (2006).
83
ARIZ. REV. STAT. § 13-4022(A) (2006). The motion must be filed with the Superior Court of the
county in which the inmate is detained. Id. If a stay of execution is desired, an application for a stay must
be submitted to the Arizona Supreme Court. ARIZ. REV. STAT. § 13-4022(B) (2006).
84
ARIZ. REV. STAT. § 13-4022(A) (2006).

306

If the court finds that the motion is timely 85 and sets forth reasonable grounds for an
examination, the court must appoint experts to conduct an evaluation of the inmate. 86
The court may subject the inmate to any examinations that are “reasonably necessary,”
including any physical, neurological, and psychological assessments. 87 If an inmate
objects to being examined by state experts, the court, in turn, will not consider any
evidence presented by the inmate’s own experts. 88 Both parties are obligated to disclose
any prior examinations by any mental health experts. 89
Following the inmate’s examination, each expert must prepare a report, answering
whether the inmate has a mental disorder, illness, defect or disability “such that the
prisoner is incompetent to be executed and would benefit from competency restoration
treatment.” 90 The reports must be made available to both parties. 91
The court may then hold a hearing to assess the inmate’s competency to be executed. 92
At the hearing, both parties may introduce witnesses and evidence on the issue of the
inmate’s mental competency. 93 Alternatively, the parties may opt to allow the court
decide the issue on the basis of the experts’ reports or other evidence. 94 In all cases, a
death-row inmate is presumed to be competent to be executed,95 and carries the burden of
proving his/her incompetency by clear and convincing evidence.96
If the court finds that the inmate has proven his/her mental incompetency to be executed,
it must stay the inmate’s execution97 and order competency restoration treatment until
such time as the inmate regains competency. 98 If the court determines that the inmate is
competent, another competency hearing only will be held if the successive motion
contains an affidavit from a physician or a psychologist.99 The affidavit must show that
the expert examined the inmate and that “a substantial change of circumstances” raises a

85

A motion is considered untimely if filed less than twenty days before a scheduled execution. ARIZ.
REV. STAT. § 13-4024(A) (2006). However, the court will consider a motion that is filed less than twenty
days before an execution if the motion includes an affidavit by a licensed physician or psychologist stating
that the prisoner is not competent to be executed and good cause for the failure to file a timely motion.
ARIZ. REV. STAT. § 13-4024(A)(1), (2) (2006).
86
ARIZ. REV. STAT. § 13-4022(C) (2006). In order to obtain review of the court’s ruling on a motion for
examination, either party may file a petition for special action with the Arizona Supreme Court within five
days of the decision. ARIZ. REV. STAT. § 13-4022(I) (2006).
87
ARIZ. REV. STAT. § 13-4022(D) (2006).
88
Id.
89
ARIZ. REV. STAT. § 13-4022(C) (2006).
90
Id.
91
Id.
92
ARIZ. REV. STAT. § 13-4022(E) (2006).
93
Id.
94
Id.
95
ARIZ. REV. STAT. § 13-4022(F) (2006).
96
Id.
97
ARIZ. REV. STAT. § 13-4022(G) (2006). The order must immediately be sent to the Arizona Supreme
Court. Id.
98
Id.
99
ARIZ. REV. STAT. § 13-4024(C) (2006). This also applies to decisions in which the court denied a
petition for a hearing on the issue of an inmate’s competency. Id.

307

significant question as to the inmate’s competency to be executed since the court’s prior
determination. 100
In order to obtain review of the court’s finding of mental competency, either party may
file a petition for special action with the Arizona Supreme Court within five days of the
court’s decision. 101
2. Restoration of Competency
An inmate found incompetent to be executed must participate in competency restoration
treatment. Although an inmate adjudged incompetent remains within the custody of the
Arizona Department of Corrections, the Department of Health Services is the
governmental entity charged with providing competency restoration treatment. 102
Consequently, within sixty days of an inmate’s commitment to a treatment facility, the
Chief Medical Officer of the state hospital must file a status report with the Superior
Court. 103 Until the inmate is found competent to be executed, the Chief Medical Officer
must update the report every sixty days. 104 Copies of the report also must be provided to
the parties and the Arizona Supreme Court. 105
When the individual overseeing the inmate’s treatment concludes the inmate is
competent, s/he must provide a report to the Superior Court, Attorney General, and
prisoner’s attorney, outlining his/her finding. 106 Additionally, the Chief Medical Officer
must certify to the Arizona Supreme Court that the prisoner is competent. 107 The Court
will then order execution of the warrant, or if the original warrant has expired, a new
warrant of execution. 108
Within ten days after the warrant is issued, the Superior Court must appoint
psychological experts to assess the competency of the inmate. 109 Following review of the
expert opinions, if the court believes a significant question exists as to the prisoner’s
competency to be executed, the court must conduct a hearing to decide the matter. 110
However, if the inmate and State both consent, the court may elect not to hold a hearing,
and instead base its decision of competency on the expert reports. 111

100

ARIZ. REV. STAT. § 13-4024(C) (2006).
ARIZ. REV. STAT. § 13-4022(I) (2006).
102
ARIZ. REV. STAT. § 13-4022(H) (2006).
103
ARIZ. REV. STAT. § 13-4023(A) (2006).
104
Id.
105
Id.
106
ARIZ. REV. STAT. § 13-4022(H) (2006).
107
ARIZ. REV. STAT. § 13-4023(B) (2006).
108
Id. Upon a party’s request, the court may appoint psychological experts prior to the issuance of the
warrant of execution, but after the certification of the inmate’s competency by the Chief Medical Officer.
ARIZ. REV. STAT. § 13-4023(D) (2006).
109
ARIZ. REV. STAT. § 13-4023(C) (2006). Significantly, an inmate may choose to waive the appointment
of any experts. ARIZ. REV. STAT. § 13-4023(E) (2006).
110
ARIZ. REV. STAT. § 13-4023(C) (2006).
111
Id.
101

308

In order to seek review of the court’s decision, either party may file a petition for special
action with the Arizona Supreme Court within five days of the decision. 112

112

ARIZ. REV. STAT. § 13-4023(F) (2006).

309

II. ANALYSIS
A. Recommendation #1
Jurisdictions should bar the execution of individuals who have mental
retardation, as that term is defined by the American Association on Mental
Retardation. Whether the definition is satisfied in a particular case should
be based upon a clinical judgment, not solely upon a legislatively prescribed
IQ measure, and judges and counsel should be trained to apply the law fully
and fairly. No IQ maximum lower than 75 should be imposed in this regard.
Testing used in arriving at this judgment need not have been performed
prior to the crime.

The American Association on Mental Retardation (AAMR) defines mental retardation as
“a disability characterized by significant limitations both in intellectual functioning and
in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.
This disability originates before the age of 18.” 113
In 2001, the State of Arizona banned the execution of all mentally retarded individuals
against whom the State sought the death penalty after April 26, 2001. 114 In 2002,
following the U.S. Supreme Court’s decision in Atkins v. Virginia, 115 the Arizona
legislature amended the statute, allowing it to encompass all capital sentencing
proceedings. 116 The statute, section 13-703.02 of the A.R.S., defines mental retardation
as “a condition based on a mental deficit that involves:” (1) “significantly subaverage
general intellectual functioning,” (2) “existing concurrently with significant impairment
in adaptive behavior,” and (3) “where the onset of the foregoing conditions occurred
before the defendant reached the age of eighteen.” 117
Although Arizona’s definition of mental retardation is similar to the AAMR definition, it
appears to be more restrictive in one crucial aspect: its definition of subaverage general
intellectual functioning. Under the AAMR definition, limited intellectual functioning
requires that an individual have an impairment in general intellectual functioning that
places him/her in the lowest category of the general population. IQ scores alone are not
113

American Association on Mental Retardation, Mental Retardation, Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on May 16, 2006). The AAMR
lists five assumptions as being essential to the application of this definition:
1. Limitations in present functioning must be considered within the context of community
environments typical of the individual’s age peers and culture.
2. Valid assessment considers cultural and linguistic diversity as well as differences in
communication, sensory, motor, and behavioral factors.
3. Within an individual, limitations often coexist with strengths.
4. An important purpose of describing limitations is to develop a profile of needed supports.
5. With appropriate personalized supports over a sustained period, the life functioning of the person
with mental retardation generally will improve.
Id.
114
See State v. Grell, 66 P.3d 1234, 1240 (Ariz. 2003) (en banc); ARIZ. REV. STAT. § 13-703.02 (2006);
2001 Ariz. Legis. Serv. 260 (S.B. 1551) (West).
115
536 U.S. 304 (2002)
116
See State v. Dann, 79 P.3d 58, 62 n. 3 (Ariz. 2003); 2002 Ariz. Legis. Serv. 5th Sp. Sess. 1 (S.B. 1001)
(West).
117
See ARIZ. REV. STAT. § 13-703.02(K)(3) (2006); 2001 Ariz. Legis. Serv. 260 (S.B. 1551) (West).

310

precise enough to identify the upper boundary of mental retardation. In fact, the AAMR
has asserted that it is impossible to identify “a fixed cutoff point for making the diagnosis
of mental retardation.” 118 Still, experts generally agree that the definition of mental
retardation not only includes individuals with IQ scores of seventy or below, but also
some individuals with IQ scores in the low to mid-seventies.119 No state therefore should
impose an IQ maximum lower than seventy-five. 120
The definition set forth in section 13-703.02 of the A.R.S., however, states that
“significantly subaverage generally intellectual functioning” signifies “a full scale
intelligence quotient of seventy or lower.” 121 Importantly, Arizona courts must “take into
account the margin of error for the test administered” in determining a defendant’s IQ. 122
While the margin of error may allow diagnoses of mental retardation in individuals with
an IQ between seventy and seventy-five, 123 neither the statute nor Arizona case law
specify a commonly accepted standard error of measurement that allows us to identify an
upper IQ threshold for mental retardation.
Interestingly, a discrepancy also appears to exist within Arizona law as to the range of IQ
scores that are required to establish mental retardation. In reliance on Atkins, the Arizona
Supreme Court has stated that an “IQ below 70-75 indicates subaverage intellectual
functioning.” 124 However, if each IQ test is administered as dictated by Arizona statute,
118

AAMR, Mental Retardation 58 (10th ed. 2002).
See James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, at
7 (2002) (unpublished manuscript), available at www.deathpenaltyinfo.org/MREllisLeg.pdf (last visited on
June 19, 2006). Ellis notes that “relevant professional organizations have long recognized the importance
of clinical judgment in assessing general intellectual functioning, and the inappropriateness and imprecision
of arbitrarily assigning a single IQ score as the boundary of mental retardation.” Id. at 7 n.18; see also
American Association of Mental Retardation, AAMR Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on May 17, 2006) (noting that
“[a]n obtained IQ score must always be considered in light of its standard error of measurement,” thus
potentially making the IQ ceiling for mental retardation rise to seventy-five. However, “an IQ score is only
one aspect in determining if a person has mental retardation.”); AMERICAN ASSOCIATION OF MENTAL
RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (Ruth
Luckasson ed., 9th ed. 1992) (“Mental retardation is characterized by significantly subaverage intellectual
capabilities or ‘low intelligence.’ If the IQ score is valid, this will generally result in a score of
approximately 70 to 75 or below. This upper boundary of IQs for use in classification of mental retardation
is flexible to reflect the statistical variance inherent in all intelligence tests and the need for clinical
judgment by a qualified psychological examiner.”); AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC
th
AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4 ed. 2000) (“Thus it is possible to diagnose
Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive
behavior.”).
120
This fact is reflected in Atkins v. Virginia, where the Court noted that “an IQ between 70 and 75” is
“typically considered the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” 536 U.S. 304, 309 n.5 (2002).
121
ARIZ. REV. STAT. § 13-703.02(K)(5) (2006).
122
Id.
123
See American Association of Mental Retardation, Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on May 17, 2006) (stating that
“[a]n obtained IQ score must always be considered in light of its standard error of measurement,” which
generally is nearly five, thus increasing the IQ ceiling for mental retardation to seventy-five).
124
State v. Canez, 74 P.3d 932, 936-37 (Ariz. 2003) (stating the defendant presented evidence of an IQ of
70, “placing him on the borderline of mental retardation”); see also State v. Grell, 66 P.3d 1234, 1238-39
(Ariz. 2003) (en banc) (determining the defendant was entitled to a mental retardation hearing wherein the
defendant’s IQ scores were 72, 67, 69, 70, 57, and 65, and the defendant’s expert discounted the IQ score
119

311

the defendant will not be immune from execution on the grounds that s/he has mental
retardation if the defendant has an IQ score higher than seventy on each test.125
Furthermore, because it is unclear whether the State of Arizona considers IQ scores
between the range of seventy to seventy-five to indicate significant subaverage
intellectual functioning, and because we could not pinpoint a commonly accepted
standard error of measurement, we are unable to conclude whether the State of Arizona is
in compliance with that portion of Recommendation #1 requiring that no maximum IQ
score under seventy-five be imposed. Significantly, this section of 13-703.02 also allows
for a determination of mental retardation to be made solely on the basis of an IQ score, in
opposition to Recommendation #1.
In addition to a “significantly subaverage” IQ score, the State of Arizona requires that a
capital defendant have one or more significant impairments in adaptive behavior. The
AAMR definition of mental retardation also includes adaptive behavior limitations,
which produce real-world disabling effects on a person’s life, designed to ensure that an
individual is truly disabled and not simply a poor test-taker. 126 Under this definition,
adaptive behavior is “the collection of conceptual, social, and practical skills that have
been learned by people in order to function in their everyday lives.” 127
Similar to the AAMR definition, Arizona defines the term “adaptive behavior” as “the
effectiveness or degree to which the defendant meets the standards of personal
independence and social responsibility expected of the defendant’s age and cultural
group.” 128 The Arizona Supreme Court has not refined or expounded upon this
definition; it has simply reiterated Atkins’ assertion that “clinical definitions of mental
retardation require not only subaverage intellectual functioning, but also significant
limitations in adaptive skills such as communication, self-care, and self-direction . . .” 129
The AAMR also requires that mental retardation be manifested before the age of
eighteen. This does not mean that a person must have scored in the mentally retarded
of 57); State v. Dann, 79 P.3d 58, 63 (Ariz. 2003) (“In fact, the IQ evidence that Dann offered showed that
at the time of sentencing his full scale IQ was 100, substantially above the ‘seventy to seventy-five range’
that triggers the mental retardation inquiry.”
125
ARIZ. REV. STAT. § 13-703.02(F) (2006). It is important to note that this cannot occur until after
examination by a prescreening psychological expert and additional examination by one or more experts in
mental retardation. See supra notes 11 – 26 and accompanying text.
126
James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, at 8
(2002) (unpublished manuscript), available at www.deathpenaltyinfo.org/MREllisLeg.pdf (last visited on
May 16, 2006).
127
American Association on Mental Retardation, Mental Retardation, Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on May 16, 2006). The U.S.
Supreme Court in Atkins v. Virginia indicated that a limitation in adaptive behavior was comprised of
deficits in at least two of the following skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure, and work. 536 U.S. 304,
309 n.3 (2002). Since Atkins, the AAMR has dispensed with the requirement that deficiencies in at least
two or more of the ten skill areas be found. While the AAMR still considers many of the ten adaptive skills
relevant in assessing mental retardation, clinicians now focus on them in terms of conceptual, social, and
practical skills. See American Association of Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Support 81-82 (Ruth Lackasson et al. eds., 10th ed. 2002).
128
ARIZ. REV. STAT. § 13-703.02(K)(1) (2006).
129
State v. Grell, 66 P.3d 1234, 1238 (Ariz. 2003) (en banc); State v. Canez, 74 P.3d 932, 937 (Ariz.
2003).

312

range on an IQ test during the developmental period, but that there must have been
manifestations of mental disability.130 At an early age, this generally takes the form of
problems in the area of adaptive functioning. 131 The age of onset requirement is thus
used to distinguish mental retardation from those forms of mental disability that can
occur later in life, such as traumatic brain injury or dementia.132 In concert with the
AAMR’s definition, the State of Arizona similarly requires the “onset” of subaverage
intellectual functioning and concurrent deficits in adaptive behavior before the age of
eighteen. 133
In assessing whether a capital defendant has mental retardation, clinical judgments by
experienced diagnosticians are necessary to ensure accurate diagnoses. Under the A.R.S.,
each defendant against whom the State files a notice of intent to seek the death penalty is
automatically entitled to an evaluation by a prescreening psychological expert who must
have at least five years of experience “in the testing, evaluation and diagnosis of mental
retardation.” 134 If the defendant’s evaluation reveals an IQ of seventy-five or below, s/he
then is subject to further examination by either one or more experts in mental retardation
who also must have at least five years of experience “in the testing or testing assessment,
evaluation and diagnosis of mental retardation.” 135
In accordance with this
Recommendation, testing used in arriving at this judgment therefore need not have been
performed prior to the crime. 136
Given that the State of Arizona may determine whether the definition of mental
retardation is satisfied solely upon a legislatively prescribed IQ measure and that the
State may impose an IQ maximum lower than seventy-five, the State of Arizona is only
in partial compliance with Recommendation #1.
B. Recommendation #2
All actors in the criminal justice system, including police, court officers,
prosecutors, defense attorneys, judges, and prison authorities, should be
trained to recognize mental retardation in capital defendants and death row
inmates.

All Arizona law enforcement officers are statutorily required to complete a basic training
course at a training academy authorized by the Arizona Peace Officers Standards and
Training Board (POST Board), the regulatory body charged with overseeing the training
of law enforcement candidates and officers. 137 Prior to obtaining certification as a peace
officer, all candidates must complete 585 hours of training, two hours of which touch
upon mental illness and developmental disabilities, including mental retardation. 138
130

Ellis, supra note 119.
Id.
132
Id.
133
ARIZ. REV. STAT. § 13-703.02(K)(3) (2006).
134
ARIZ. REV. STAT. § 13-703.02(B), (K)(4) (2006).
135
ARIZ. REV. STAT. § 13-703.02(D), (E), (K)(2) (2006).
136
ARIZ. REV. STAT. § 13-703.02 (2006).
137
See ARIZ. REV. STAT. § 41-1822(A) (2006); ARIZ. ADMIN. CODE R13-4-110(A)(1); R13-4-116 (2006).
138
ARIZ. ADMIN. CODE R13-4-116(E); R-13-4-110(A) (2006); see Email from Rick Watling, AZ Peace
Officers Standards and Training Board, to Banafsheh Amirzadeh, Project Attorney, American Bar
131

313

Peace officers then are mandated to complete eight hours of continuing education each
year. 139 As part of its continuing education curriculum, the POST Board offered in
January 2005 the telecourse Recognizing Mental Illness & Developmental Disabilities: A
Pro-Active Approach, which not only discussed approaches and special considerations
police officers should take when interacting with mentally retarded offenders, but also
provided training on distinguishing between mental retardation and mental illness. 140
Furthermore, in capital cases, the Arizona Rules of Criminal Procedure mandate that lead
counsel appointed at the trial level be familiar with the American Bar Association’s
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
(Guidelines). 141 The Guidelines require that attorneys seeking to qualify to receive
appointments should receive training in “the presentation and rebuttal of scientific
evidence, and developments in mental health fields and other relevant areas of forensic
and biological science” 142 and that the pool of available defense attorneys should have
sufficient numbers of attorneys who have demonstrated “skill in the investigation,
preparation, and presentation of evidence bearing upon mental status.” 143 In addition, the
Arizona Rules of Criminal Procedure require all counsel handling death penalty cases to
have completed at least six hours of relevant training or educational programs in the area
of capital defense within a year of their initial appointment, and at least twelve hours of
relevant training or educational programs in the area of criminal defense within a year
prior to any subsequent appointment. 144 Similarly, all new judges are obliged to
complete a requisite number of hours of training, depending on the month they
commenced employment, 145 and sixteen hours of continuing education a year
subsequently. 146 We were unable to ascertain whether the required training and
continuing legal education for capital defense attorneys and judges include specialized
training on mental retardation, however.

Association (May 15, 2006) (on file with author) (denoting two hours of training in the area of mental
illness and developmental disabilities).
139
ARIZ. ADMIN. CODE R13-4-111(A)(1) (2006).
140
AZ POST Board, Recognizing Mental and Developmental Disabilities: A Proactive Approach, A
Telecourse Production of the Arizona Peace Officer Standards & Training Board, at 4, 11 (January 20,
2005). In 2006, the AZ POST Board also offered an eight hour course for peace officer instructors entitled
Mental Illness/Developmental Disability Train-the-Trainer. AZ POST Board, Training Calendar January –
June 2006, at 11, available at http://www.azpost.state.az.us/.
141
ARIZ. R. CRIM. P. 6.8(b)(1)(iii). On May 19, 2006, the Arizona State Bar approved amendments to
Rule 6.8, which, if approved by the Arizona Supreme Court, would require lead counsel to not only be
familiar with the Guidelines, but to also comply with them. In the Matter of Petition to Amend Rule 6.8 of
the Arizona Rules of Criminal Procedure, No. R-05-0031 (Ariz. filed May 22, 2006) (comment by State
Bar of Arizona).
142
American Bar Association, Guidelines for the Appointments and Performance of Defense Counsel in
Death Penalty Cases, at 8.1(B)(11) (revised Feb. 2003).
143
Id. at 5.1(B)(2)(f) (revised Feb. 2003).
144
ARIZ. R. CRIM. P. 6.8(B)(1),(2), (C) (including post-conviction counsel). In exceptional circumstances,
and with the consent of the Arizona Supreme Court, an attorney may be appointed who does not meet these
requirements. ARIZ. R. CRIM. P. 6.8(D).
145
Educational Services Division, Arizona Administrative Office of the Courts, Educational Policies and
Standards § K(1)(b), available at http://www.supreme.state.az.us/ed/ao9908.htm (last visited April 11,
2006).
146
Id. §§ C(1); D(1); I.

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To the best of our knowledge, the State of Arizona does not explicitly require any other
actors in the criminal justice system, including court officers, prosecutors, judges, and
prison authorities to participate in training to recognize mental retardation in capital
defendants and death-row inmates.
Based on this information, it appears that while certain members of the criminal justice
community may receive training on mental retardation, not all actors within the criminal
justice system do. The State of Arizona, therefore, is only in partial compliance with
Recommendation #2.
C. Recommendation #3
The jurisdiction should have in place policies to ensure that persons who
may have mental retardation are represented by attorneys who fully
appreciate the significance of their client's mental limitations. These
attorneys should have training sufficient to assist them in recognizing mental
retardation in their clients and understanding its possible impact on their
clients' ability to assist with their defense, on the validity of their
"confessions" (where applicable) and on their eligibility for capital
punishment. These attorneys should also have sufficient funds and
resources (including access to appropriate experts, social workers and
investigators) to determine accurately and prove the mental capacities and
adaptive skills deficiencies of a defendant who counsel believes may have
mental retardation.

The State of Arizona requires that capital defense attorneys appointed at the trial level be
familiar with the American Bar Association’s Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, 147 which, in turn, requires that
capital defense attorneys participate in training related to “developments in the mental
health fields.” 148 Significantly, the Guidelines note that:
Evidence concerning the defendant’s mental status is relevant to numerous
issues that arise at various junctures during the proceedings, including
competency to stand trial, sanity at the time of the offense, capacity to
intend or premeditate death, ability to comprehend Miranda warnings, and
competency to waive constitutional rights. 149
The Guidelines also stipulate that the defense team should, at minimum, include two
attorneys, one investigator, and one mitigation specialist; one member of which must be
“qualified by training and experience to screen individuals for the presence of mental or
psychological disorders or impairments.” 150
147

ARIZ. R. CRIM. P. 6.8(b)(1)(iii). On May 19, 2006, the Arizona State Bar approved amendments to
Rule 6.8, which, if approved by the Arizona Supreme Court, would require attorneys to not only be familiar
with the Guidelines, but to also comply with them. In the Matter of Petition to Amend Rule 6.8 of the
Arizona Rules of Criminal Procedure, No. R-05-0031 (Ariz. filed May 22, 2006) (comment by State Bar of
Arizona).
148
American Bar Association, Guidelines for the Appointments and Performance of Defense Counsel in
Death Penalty Cases, at 5.1(B)(1)(c), 8.1(B)(10) (revised Feb. 2003).
149
Id. at 4.1 cmt.
150
Id. at 4.1(A)(1),(2); 10.4(C)(2)(b).

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Under section 13-703.02 of the A.R.S., whenever the State seeks the death penalty, the
defendant automatically is appointed a prescreening psychological expert to assess
his/her IQ. 151 At this prescreening, the court, not the defendant, chooses the prescreening
psychological expert who then reports the outcome of the evaluation to the court. 152
Because the prescreening psychological expert is not provided directly to counsel, s/he is
not the type of resource contemplated by this Recommendation.
If the prescreening expert determines that the defendant has an IQ of seventy-five or
below, the trial court must order the State and the defendant to (1) individually nominate
three experts in mental retardation, 153 or (2) jointly nominate one expert in mental
retardation. 154 The trial court must then either appoint two experts, one nominated by the
State and the other by the defendant, or appoint one expert nominated in concert by both
parties. 155 The court also may opt to appoint an additional expert in mental retardation
who was nominated neither by the State nor the defendant.156 Although the expert(s)
must still provide the trial court their opinion “as to whether the defendant has mental
retardation,” 157 this system of appointing experts balances the interests of each party
while allowing for a neutral determination of mental retardation. The system thereby
provides attorneys with some resources to assist them in assessing the mental capacities
and adaptive skills deficiencies of a defendant who may have mental retardation.
Additionally, if a defendant shows that s/he does not have the financial means to pay for
investigators and experts, the court must appoint investigators and experts “as are
reasonably necessary to adequately present a defense at trial and at any subsequent
proceeding.” 158 The court also may choose to appoint investigators and experts on its
own accord. 159 What is “reasonably necessary” for an adequate defense hinges upon the
particular facts of each case. 160 While the Arizona Supreme Court has held that “[s]o
long as the law permits capital sentencing, Arizona’s justice system must provide
adequate resources to enable indigents to defend themselves in a reasonable way,” the
Court also has noted that “an indigent defendant does not have an unlimited right to all
items that [s/]he believes are necessary for his[/her] defense.” 161
Based on this information, it is unclear whether Arizona is in compliance with
Recommendation #3.
151

ARIZ. REV. STAT. § 13-703.02(B). An expert will not be appointed, however, if the defendant objects.

Id.
152

See id.
An expert in mental retardation is defined as a “psychologist or physician licensed pursuant to tile 32,
chapter 13, 17 or 19.1 with at least five years’ experience in the testing or testing assessment, evaluation
and diagnosis of mental retardation.” ARIZ. REV. STAT. § 13-703.02(K)(2) (2006).
154
ARIZ. REV. STAT. § 13-703.02(D) (2006). The court must issue its order within ten days of the report’s
receipt. Id.
155
Id. The expert(s) nominated must be different from the prescreening expert. Id.
156
Id. The additional expert appointed by the court must be different from the prescreening expert. Id.
157
ARIZ. REV. STAT. § 13-703.02(E) (2006).
158
ARIZ. REV. STAT. § 13-4013(B) (2006) (emphasis added).
159
Id.
160
State v. Bocharski, 22 P.3d 43, 55 (Ariz. 2001) (en banc).
161
Id. at 55 n.5.
153

316

D. Recommendation #4
For cases commencing after the United States Supreme Court’s decision in
Atkins v. Virginia 162 or the State’s ban on the execution of the mentally
retarded (the earlier of the two), the determination of whether a defendant
has mental retardation should occur as early as possible in criminal
proceedings, preferably prior to the guilt/innocence phase of a trial and
certainly before the penalty stage of a trial.

Section 13-703.02 of the A.R.S. allows each defendant against whom the State seeks the
death penalty to determine whether s/he has mental retardation prior to trial. 163 Because
Arizona law allows for a pre-trial determination of mental retardation, the State of
Arizona is in compliance with Recommendation #4.
E. Recommendation #5
The burden of disproving mental retardation should be placed on the
prosecution, where the defense has presented a substantial showing that the
defendant may have mental retardation. If, instead, the burden of proof is
placed on the defense, its burden should be limited to proof by a
preponderance of the evidence.

The State of Arizona does not require the prosecution to disprove mental retardation after
the defendant has presented a substantial showing that s/he may have mental retardation.
Rather, Arizona places the burden of proving mental retardation on the defendant by
“clear and convincing evidence.” 164 Only if the trial court determines that the defendant
has an IQ of sixty-five or below is the defendant entitled to a rebuttable presumption of
mental retardation. 165
The State of Arizona, therefore, fails to comply with Recommendation #5.
F. Recommendation #6
During police investigations and interrogations, special steps should be
taken to ensure that the Miranda rights of a mentally retarded person are
sufficiently protected and that false, coerced, or garbled confessions are not
obtained or used.

Arizona has no state law ensuring that the Miranda rights of mentally retarded
individuals are sufficiently protected or that false, coerced or garbled confessions are not
obtained or used.
162

536 U.S. 304 (2002).
ARIZ. REV. STAT. § 13-703.02 (2006).
164
ARIZ. REV. STAT. § 13-703.02(G) (2006). Of the twenty-six states that have adopted statutes or rules
prohibiting the execution of the mentally retarded, sixteen states require the defendant to prove mental
retardation by a preponderance of the evidence and Arizona is one of six states using a clear and
convincing evidence standard. See John H. Blume, Summaries of Relevant Cases and Legislation
Resulting From Atkins v. Virginia, 536 U.S. 304 (2002) (Dec. 2, 2005) (unpublished manuscript) (on file
with author).
165
ARIZ. REV. STAT. § 13-703.02(G) (2006).
163

317

However, police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Arizona certified
by the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) 166
are required to adopt written directives establishing procedures to be used in criminal
investigations, including procedures on interviews and interrogations. 167 CALEA further
requires a written directive for assuring compliance with all applicable constitutional
requirements pertaining to interviews, interrogations and access to counsel. 168 Although
these directives may include procedures designed to ensure that the Miranda rights of
mentally retarded individuals are sufficiently protected and that false, coerced, or garbled
confessions are not obtained or used, we were unable to assess the extent to which law
enforcement officials have adopted any such procedures.
We do note that the General Operating Procedures for the Tucson Police Department
state that officers must be “careful in explaining the Miranda rights to suspects who may
have trouble understanding them, such as . . . persons with low IQ.” 169 Additionally, the
Phoenix Police Department has established a separate and distinct Operations Order for
interviewing and/or interrogating individuals with disabilities. 170 However, we were
unable to determine the exact scope of the Order and whether individuals with disabilities
encompass individuals with mental retardation.
The Arizona Supreme Court has recognized that mentally retarded offenders are entitled
to special consideration from police. 171 In reviewing the investigative procedures
employed by police to assess the voluntariness of a confession, Arizona courts must
consider the defendant’s mental condition. 172 Indeed, the Court in State v. Carrillo stated
that “[c]ertainly the police are not permitted to take advantage of the . . . mentally
deficient . . . by employing artifices or techniques that destroy the will of the weakest but
leave the strong, the tough, and the experienced untouched.” 173 In the very same case,
166

Eighteen police departments, sheriff’s departments, state law enforcement agencies, transportation
police departments, and university police departments in Arizona have been accredited or are in the process
of obtaining accreditation by the Commission on Accreditation for Law Enforcement Agencies (CALEA).
See CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited on
May 16, 2006) (use second search function, designating “U.S.” and “Arizona” as search criteria); see also
CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited on
Sept. 23, 2005) (noting that CALEA is an independent accrediting authority established by the four major
law enforcement membership associations in the United States: International Association of Chiefs of
Police (IACP); National Organization of Black Law Enforcement Executives (NOBLE); National Sheriffs'
Association (NSA); and Police Executive Research Forum (PERF)).
167
COMMISSION ON ACCREDITATION OF LAW ENFORCEMENT AGENCIES, STANDARDS FOR LAW
ENFORCEMENT AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
ACCREDITATION PROGRAM 42-2 (4th ed. 2001) [hereinafter CALEA STANDARDS] (Standard 42.2.1).
168
Id. at 1-3 (Standard 1.2.3).
169
TUCSON POLICE DEPARTMENT GENERAL OPERATING PROCEDURES § 2264, Vol. 2 (Revised Feb. 2004).
170
See PHOENIX POLICE DEPT. OPERATIONS ORDER 4.19, § 3(E) (stating that employees must follow the
guideline set in Operations Order 4.15 with respect to interviewing/interrogating individuals with
disabilities).
171
Sate v. Carrillo, 750 P.2d 883, 893, 895 (Ariz. 1988) (en banc) (affirming mentally retarded
defendant’s conviction of second-degree murder and theft).
172
Id. at 895 (assessing the voluntariness of a mentally retarded defendant’s confession).
173
Id. at 894-95 (The “police cannot treat an uneducated, retarded suspect in the same manner as they
might treat a sophisticated businessmen or professional suspected of white collar crime.”).

318

however, the Court held the police’s interrogation of the mentally retarded defendant to
be non-custodial, thus dispensing with the requirement that Miranda warnings be
provided. 174 In so holding, the Court found that “[g]iven his diminished mental capacity,
it may be that [the defendant’s] subjective perception was to the contrary, but we deal
with objective criteria only in determining whether the interrogation was custodial.” 175
Because we were unable to ascertain the steps taken by the State of Arizona to ensure that
the Miranda rights of mentally retarded offenders are sufficiently protected or that false,
coerced, or garbled confessions are not obtained or used, we are unable to determine
whether the State of Arizona meets the requirements of Recommendation #6.
G. Recommendation # 7
The jurisdiction should have in place mechanisms to ensure that, during
court proceedings, the rights of mentally retarded persons are protected
against "waivers" that are the product of their mental disability.

Courts can protect against “waivers” of rights, such as the right to counsel, by holding a
hearing (either sua sponte or on the request of one of the parties) to determine whether
the defendant’s mental disability affects his/her ability to make a knowing and voluntary
waiver and by rejecting any waivers that are the product of the defendant’s mental
disability. The State of Arizona, however, does not appear to require its courts to conduct
hearings in order to determine whether a defendant’s mental retardation affects his/her
ability to make a knowing and voluntary waiver.
Under Arizona law, the waiver of a defendant’s rights “must be balanced against the
state’s interest in conducting a fair trial and upholding the integrity of the judicial
process.” 176 The waiver of a constitutional right also must be made voluntarily,
knowingly, and intelligently. 177 For example, the State of Arizona will only allow a
defendant to waive his/her right to counsel if the waiver is in writing and the court has
determined that s/he knowingly, intelligently, and voluntarily relinquished it. 178
Accordingly, it does not appear that the State of Arizona is in compliance with
Recommendation #7.

174
175
176
177
178

Id. at 892.
Id.
State v. Bocharski, 22 P.3d 43, 54 (Ariz. 2001) (en banc).
Id.
ARIZ. R. CRIM. P. 6.1(c).

319