Policy Shift on Death Penalty Overwhelms Arizona Court
By JENNIFER STEINHAUER
Published: March 5, 2007
PHOENIX, March 2 ‹ Maricopa County, one of the nation¹s fastest growing
counties, now has an additional distinction: It is also a leader in seeking
the death penalty.
Laura Segall for The New York Times
In Maricopa County, Ariz., Andrew Thomas has doubled the number of death
penalty recommendations since he was elected county attorney.
During his two years in office, Andrew P. Thomas, the county attorney, has
nearly doubled the number of times that the office has sought the death
penalty, even though the number of first-degree murder cases prosecuted by
the county has remained more or less the same for a decade.
A policy change that he enacted has contributed to a backlog of capital
cases here that has crippled the county¹s public defender system, left
roughly a dozen murder defendants without representation, and prompted
rancor and demoralization in the agencies that defend capital cases.
³Clearly the system is overwhelmed,² said James J. Haas, the Maricopa County
public defender. ³There are not enough lawyers who are qualified to take
The Arizona Supreme Court has convened a task force to address the issue.
Separately, on Friday, a county superior court judge assembled parties
within the county justice system to look for solutions.
The capital defense lawyers, county budget officials and representatives of
the county attorney¹s office met privately to begin working toward a
settlement, averting for now a highly unusual hearing previously ordered by
the judge to address the cases.
One possible result is that the county attorney may remove the death penalty
status from some cases, said lawyers who were present.
The judge, James H. Keppel, said in court on Friday that the only settlement
he would accept was one that included the immediate provision of lead
counsel for those defendants without adequate representation, and a
long-range plan designed to prevent further crisis in the courts. In 2006,
the Maricopa County Attorney¹s Office sought the death penalty in 44 of 89
murder cases. By comparison, in 2004, the year before Mr. Thomas became
county attorney, the office sought the death penalty in 28 of 108 cases. The
county, which includes the City of Phoenix, currently has 138 capital cases
pending or awaiting trial, surpassing the total number of defendants who
received the death penalty nationwide last year.
While there is no central clearinghouse for county data on cases in which
the death penalty is sought, Maricopa is almost certainly ³among the highest
in the nation,² said Richard C. Dieter, the executive director of the
nonprofit Death Penalty Information Center in Washington.
³In its heyday, 138 cases in Harris would have been a lot,² Mr. Dieter
added, referring to the Texas county known for seeking the death penalty; it
currently has 17 such cases pending.
Overwhelmed defense lawyers have asked the courts to stay capital cases for
which there have been no lawyers available, setting off the county legal
Mr. Thomas responded by accusing the defense lawyers of ³delay tactics,²
which prompted a firestorm between his office and the four county units that
defend capital cases.
³I don¹t want to be in the middle of a philosophical debate about the death
penalty; it¹s the law,² said Mark Kennedy, the director of the county¹s
Office of Contract Counsel, which appoints lawyers for cases that the public
defender¹s office cannot handle. Its lawyers defend more than half of the
county¹s capital cases. ³All I was saying was, ŒTime out.¹ ²
Mr. Kennedy was enraged by Mr. Thomas¹s comments, and has argued, along with
other defense lawyers, that capital cases require significant time and
resources in order to comply with guidelines dictated by the American Bar
³Who is going to tell me this guy needs more work?² said Mr. Kennedy,
tapping on a dossier that showed one lawyer with six capital cases on his
desk. ³No judge, no lawyer, no one, not in this lifetime. You can fire me
but I won¹t do it, and it really makes my blood pressure soar to hear these
folks aren¹t working hard enough.²
Two lawyers in the public defender¹s office have told Mr. Haas that they are
considering quitting because they are so demoralized by the workload and by
Mr. Thomas¹s comments.
Furthermore, lawyers throughout the county are concerned that as more
criminal case judges become consumed with capital murder cases, civil judges
may be called upon to deal with lesser criminal matters, depleting the civil
system and holding up proceedings there.
³Any time there is a problem getting cases assigned to a judge in the
criminal division is really problematic,² said Kelly J. McDonald, the
immediate past-president of the Arizona Trial Lawyers Association.
Mr. Thomas, a Republican, took office in January 2005 after a campaign that
focused on themes of law and order. He said in an interview that he was
simply seeking to increase the percentage of first-degree murder cases in
which the death penalty was requested to its level in the mid-1990s of
roughly 42 percent. The year before he took office, in 2004, the county
attorney sought the death penalty in 26 percent of first-degree murder
cases. He sought it in 49 percent last year.
Mr. Thomas said he did not believe that lawyers needed a particularly
extensive amount of time and resources to defend capital cases; he argued
that most of the work was done on the prosecutorial side and that the court
was culpable for delays.
³The courts have not enforced the speedy-trial rules,² Mr. Thomas said. ³And
the overall strategy of the defense bar is to delay things.²
In light of a 2003 decision by the United States Supreme Court that juries
rather than judges must make the factual determinations in sentencing
criminals to death, Mr. Thomas said he had concluded that juries should be
given broader latitude over who receives the sentence.
It is a view rejected by defense lawyers who specialize in capital cases,
and who argue that the law and resource management issues dictate that the
death penalty should be sought in only the worse of the worst first-degree
³One of the ways prosecutors manage their discretion is to decide, ŒIs this
the right offense and is this the right offender?¹ ² said Diane M. Meyers, a
member of the state bar¹s Indigent Defense Task Force. ³Doing that on the
front end saves everyone time and money.²
The cost of defending capital cases, which experts said averaged $100,000,
should not be a consideration, Mr. Thomas said.
Nationally, the number of death sentences fell 60 percent from 1999 to 2005,
according to the Death Penalty Information Center. Incomplete data suggest
there were 114 such cases in 2006, said Mr. Dieter, of the center.
³Generally that means fewer cases are being sought and juries are returning
fewer death sentences,² Mr. Dieter said. ³All the indications ‹ sentences,
executions, the size of death row ‹ are that public support for the death
penalty have all dropped.²
Mr. Thomas, who won 58 percent of the vote in his 2004 bid for county
attorney, does not share that view.
³It appears to me that there is an effort nationwide not only to delay the
executions of convicted murderers but to basically snuff out the death
penalty as a meaningful deterrent to would-be killers,² Mr. Thomas said. ³At
some point it is important for advocates of public safety and justice to do
their utmost to ensure the process is not becoming so badly broken that
justice cannot be done.²