By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Attorney General Kris Mayes has picked up some allies in her fight with Maricopa County Attorney Rachel Mitchell over who gets to seek to execute Aaron Gunches.

In a new legal filing, former Attorney General Terry Goddard joined with two former county attorneys, Republican Rick Romley of Maricopa County and Barbara LaWall of Pima County, to urge the Supreme Court to reject

Mitchell’s bid to seek a warrant of execution. They said the state’s history of the death penalty and associated legislation makes clear why the Attorney General’s Office is in charge.

Attorney Andrew Stone, who filed the friend of the court brief, said his clients believe Mitchell’s position is “bad public policy and unworkable.”

Hanging in the balance is the life of Aaron Gunches who pleaded guilty to first-degree murder and kidnapping in the 2002 death of Ted Price, his girlfriend’s ex husband.

A warrant for execution had been issued in 2022 at the request of then-Attorney General Mark Brnovich. But that warrant, which had a fixed times limit, expired before the execution was carried out.

Mayes, newly elected in 2023, declined for the moment to seek a new one.
The attorney general said she is waiting on a report by a special Death Penalty Commission named by Gov. Katie Hobbs, also newly elected. She said the process has remained plagued by questions.

“Recent executions have been embroiled in controversy,” the governor said. There were reports that prison employees had repeated problems in placing the intravenous line into the veins of the condemned men.

“The death penalty is a controversial issue to begin with,” Hobbs continued. “We just want to make sure the practices are sound and that we don’t end up with botched executions like we’ve seen recently.”

That report is not expected to be ready before the end of the year.

But Mitchell insists that she has concurrent authority to ask the high court, in the name of “the state,” to set a date for Gunches’ execution, prompting the brief by Goddard, Romley and LaWall.

Setting such a precedent, the three former elected officials are telling the justices, is a bad idea.

“The Maricopa County Attorney believes that just because her office represents the state in some proceedings, it therefore has the authority to represent the state in any proceeding it chooses,” their legal brief argues.

It starts, they say, with state laws, which spell out that the attorney general is the “chief legal officer” who shall “prosecute and defend in the supreme court all proceedings in which this state is a party.”

By contrast, they say, the state’s 15 county attorneys can represent the state and “conduct all prosecutions for public offenses, but only within their respective counties.” And the trio contend this has never been understood to extend to seeking execution warrants.

There’s a more practical issue.

Consider, they said, what would happen if any prosecutor argued he or she has the authority to speak for “the state” in any prosecution.

“This would require courts to resolve internal disputes among the various prosecutors’ offices who claimed to be representing ‘the state’ before ever turning their attention to the actual issues of the state,” Stone wrote for the former prosecutors.

“Arizona courts are sufficiently busy without forcing judges to determine conflicting arguments from the same party,“ the prosecutors argued. “The Maricopa County Attorney’s request would do little more than sow confusion among an otherwise well-understood and agreed-upon procedure.”

There’s something else: Seeking a warrant of execution is more complex than simply filing a piece of paper with the Supreme Court.

“There are dozens of motions that are filed after this court grants the state’s request to set a briefing schedule for a warrant of execution,” they noted.

They pointed out the Attorney General’s Office has been specially funded by the Legislature to handle post-conviction proceedings.

“To permit a prosecutor’s office to seek an execution warrant but not follow through with the ensuing litigation would be no different than allowing one prosecutor’s office to indict a dozen defendants in a complex fraud matter, but then force another office to handle all the subsequent work,” the brief states.

“The indictment, like a motion seeking an execution warrant is the easy part,” it continued. “Securing a conviction and navigating the attendant capital-case appellate issues are much more difficult.”

Mitchell declined to be interviewed on the filing. Instead, she filed her own legal brief saying all it does is repeats Mayes’ “unsupported and unsupportable legal conclusions” about her authority.

It starts with the stated reason for the delay: that “independent death penalty review.” Mitchell said that is irrelevant to the current case, saying there is no dispute the legal requirements have been met to issue a warrant of execution — just as they were when Brnovich obtained the first warrant.
Mitchell also says the bid to block her from proceeding ignores the constitutional and statutory rights of victims.

These include ensuring “a prompt and final conclusion of the case after the conviction and sentence.” And Mitchell has said Karen Price, who was Ted’s sister and his daughter Brittney Kay, have asserted those right and have asked for her help in enforcing them, something she said state law requires her to do.

Finally, Mitchell said while the attorney general may have some “supervisory authority” over county attorneys, that does not extend to her “legally supported attempt to exercise absolute control.”

The view Mitchell is exceeding her authority extends to several current sitting county attorneys.

Coconino County Attorney William Ring said he’s not familiar with the process as his county hasn’t sought a death penalty in years. And the Democrat said he sees no need to pursue concurrent jurisdiction with the attorney general in initiating an execution warrant.

“Concurrent jurisdiction to seek an execution warrant only invites a race to the death chamber,” he said. “That would be confusing to the victim representatives and embarrassing to the state.”

Pima County Attorney Laura Conover, also a Democrat, has a more basic problem with the whole issue and the inconsistencies in Mitchell seeking to “speak for the state” on the issue, especially in contradiction with the attorney general.

“We have a Maricopa death penalty, not an Arizona death penalty, because the rest of the state can’t afford or won’t tolerate it,” she said. “The quickest and most efficient way to avoid the inconsistency is for Arizona to stop tinkering with the machinery of death, statewide.”

Several Republican county attorneys contacted by Capitol Media Services declined to comment on the issue of whether Mitchell has authority to seek a warrant of execution.

Mayes has never said she will refuse to ever seek execution warrants even after the report of the death penalty commissioner is released. But, like Conover, she has said there is an issue of whether where someone commits a crime affects a sentence.

“In particular, I’m interested in knowing whether there are disparities between counties in Arizona in terms of which receives the death penalty,” she said when the moratorium was first announced.

“It is beginning to look like the death penalty is only being sought in Maricopa County because Maricopa County can afford it,” the attorney general explained, what with the huge price tag on prosecutors and defense counsel devoting years — and sometimes decades — of their time to just a handful of cases. “We need to understand that better before we go forward.’’

The statistics show that about 60% of Arizonans live in the state’s largest county, versus close to 73% of death row inmates sentenced from courts there.