Arizona faces 'reckoning' in death row cases after ignoring high court precedent for years
Back-to-back U.S. Supreme Court rulings have put Arizona's death penalty under the microscope and could have far-reaching implications for how the state sentences convicted murderers.
Already, the rulings have forced another look at old capital cases.
As many as 30 of the 109 people on Arizona's death row could have their death penalties — but not their guilty verdicts — reconsidered, legal experts say. It's not yet clear how that might happen, but it could involve new sentencing hearings or trials.
The high court, in two separate opinions in late February, ruled Arizona courts disregarded case law for nearly 30 years.
The U.S. Supreme Court ruled that Arizona improperly sent people to death row by failing to tell juries the defendants would never be released if they were sentenced to life without parole. That violated defendants' due process rights under the U.S. Constitution.
In case after case, the Arizona Supreme Court upheld death penalty verdicts, nonetheless. The new rulings force what one legal expert called a "reckoning" that could send shock waves through the state's criminal justice system.
The state Supreme Court's disregard for following this case law already has led to three men being resentenced. Bryan Wayne Hulsey was handed the death penalty a second time, and Joel Escalante-Orozco was resentenced to life in prison. The third, Jasper Phillip Rushing, is back in Maricopa County Superior Court for a sentencing do-over at the end of March.
Another six defendants could get new hearings. Nine of the 10 cases, including the three that were resolved a second time, were tried in Maricopa County, which is one of the most aggressive counties in the nation for seeking and securing capital punishment verdicts.
Maricopa County Attorney Rachel Mitchell said her office would abide by the ruling and look at the cases that were affected by the court's decision.
The 10th case up for review involves John Montenegro Cruz, who was convicted in 2005 for the 2003 fatal shooting of Tucson, Arizona, police Officer Patrick Hardesty. He was accused of shooting the officer five times after he fled from a hit-and-run investigation and hid in a nearby apartment. He was sentenced to death and appealed.
"This whole mess could have been avoided if the Arizona Supreme Court followed the law that has been in place for nearly 30 years,” said Dale Baich, a former assistant federal public defender.
From 1994 ruling until today: How we got here
The legal debate about this aspect of Arizona's death penalty stems from the 1994 Supreme Court case Simmons v. South Carolina. It set the precedent for defendants to be able to tell juries that they would not be eligible for parole if they were sentenced to life in prison instead of death. But for many years, Arizona refused to apply the ruling.
The Supreme Court applied the Simmons standards to two sets of Arizona murder cases with different appeal circumstances.
In late February, the U.S. Supreme Court ruled in favor of Cruz, who challenged his death sentence because jurors weren't instructed at the time that if he were given a life sentence, it would be without parole.
The Cruz ruling, which relied on a key principle established in a 2016 case, Lynch v. Arizona, prompted the Arizona Supreme Court to vacate death sentences for three men. It means Cruz could get a resentencing as well.
Days after the opinion in the Cruz appeal, the Supreme Court sent back six more death penalty cases to Arizona courts, granting review of a separate group of petitioners who argued the courts were "required" to apply the same standard for cases resolved before the Lynch ruling.
The lead petitioner was Johnathan Ian Burns, who was convicted and sentenced to death in 2010 in Maricopa County Superior Court.
The six Burns cases were decided after the Supreme Court's Simmons ruling but before the Lynch opinion. They were unable to cite Simmons because their cases were resolved before Lynch, and the Arizona Supreme Court stated that the 2016 Lynch ruling was not a “significant change in the law,” which is a requirement for a legal appeal called post-conviction relief.
But the Cruz petitioners could have been resentenced under Lynch. Their direct appeals were still live after the 2016 ruling, essentially forcing the hands of the Arizona courts to let defense lawyers inform juries of the defendants’ parole ineligibility.
What went wrong in the courtroom in these murder cases?
Arizona capital cases begin with a court trial to determine guilt or innocence. A subsequent trial determines sentencing.
Juries can sentence defendants to death or life in prison without parole, also known as "natural life." The Arizona Constitution guarantees people sentenced to death an automatic appeal.
Trial courts were not letting defense lawyers tell juries that parole did not exist in Arizona capital cases and that those convicted in those cases would spend the rest of their lives in prison.
Trial court judges also were giving incorrect instructions to the jury.
In the Cruz case, the court said unless Cruz were sentenced to death, he could be sentenced to life with the possibility of parole or release from prison after 25 years.
Arizona courts have been "playing fast and loose" with the law since the Simmons ruling, Baich said.
"Twice in the past seven years, the state Supreme Court has been admonished and told to follow the law," said Baich, who now teaches at Arizona State University's Sandra Day O'Connor College of Law.
Burns' lawyers, in briefs filed with the U.S. Supreme Court, condemned Arizona's rulings.
"It is difficult to imagine a state rule that more clearly discriminates against federal law than the one at issue here. It prohibits state postconviction courts from applying decisions that federal law requires postconviction courts to apply," Burns' lawyers wrote.
Attorneys for Burns and his co-petitioners said the state's legal stance on those cases was "nothing short of the nullification of a constitutional right for defendants sentenced to death in Arizona."
What could happen next as these sentences are reviewed?
What happens next with Cruz and the six cases granted review by the U.S. Supreme Court in the Burns ruling will be sorted out by the Arizona Supreme Court and trial courts.
Assistant Federal Public Defender Cary Sandman, an attorney for Cruz, said the state Supreme Court will have to decide if Cruz's jury should have heard evidence about his parole ineligibility and what effect that might have had.
"In Mr. Cruz's case, you have three jurors who immediately announced they would have sentenced him to life without parole" had they known it was an option, Sandman said. "And then we have a fourth juror that's referenced in Justice (Sonia) Sotomayor's opinion who gave us an affidavit several years ago saying she also would have voted for life without parole."
Family members of victims, many of whom supported their loved ones in court and saw their killers sentenced to death, will see those cases back in the judicial process.
Colleen Clase, chief counsel for the Arizona Voice for Crime Victims, said, "In the cases impacted by Cruz, the realization of victims‘ constitutional rights to justice and finality will undoubtedly be delayed."
County Attorney Mitchell declined to elaborate further on how she would review the cases or how she might direct prosecutors to approach filing and trying new murder cases.
As she looks at cases affected by Cruz, "part of that consideration is whether there was an argument of future dangerousness," she said.
Mitchell was referring to a legal principle that means jurors are allowed to know the likelihood that a defendant might commit a violent crime after being released and may consider it when agreeing on a sentence.
In the cases of the six Burns petitioners whose sentences were vacated, attorneys for the state had argued that the failure to inform jurors never prevented the accused from getting fair sentences because prosecutors never brought up future dangerousness.
The Arizona Attorney General's Office declined to comment, saying it was still reviewing the decision.
The Arizona Prosecuting Attorneys' Advisory Council, a training and lobbying organization for prosecutors, also declined comment.
More Arizona death sentences likely to be affected
The Supreme Court decision likely will affect other convicted murderers on death row.
Writing the majority decision for the U.S. Supreme Court, Justice Sotomayor cited State v. Rose as a good precedent for Arizona courts to follow.
John Mills is representing defendant Edward Rose in post-conviction proceedings. Rose pleaded guilty to the 2007 murder of a law enforcement officer, first degree felony murder, and other felonies. A jury sentenced him to death in 2010.
Mills said Rose's trial counsel requested jury instructions from the court saying that parole was not a possibility for him, but the prosecution objected, and the trial court refused to give that instruction.
"We raised the claim that he should have received that instruction," Mills said. "Rose was granted relief because the trial court found the prosecution was so reliant on future dangerousness that it pervaded the case, and therefore he should have been allowed to tell the jury if sentenced to life, he would not be paroled."
Mills called the ruling from Sotomayor "vindicating," and said he will be arguing for Rose's resentencing.
He said the potential impact of the Cruz ruling is similar to the substantial fallout from Texas courts, which long refused a U.S. Supreme Court mandate for deciding whether or not people are ineligible for a death sentence based on their intellectual disability.
"Because of the long period of refusing to recognize Simmons, together with the contortions that Arizona Supreme Court undertook to deny Simmons claims after Lynch, there is a reckoning underway in Arizona that that could have been avoided," Mills said.
What happened in the six murder cases sent back for review?
The six cases sent back for review by the U.S. Supreme Court will get a second look as the state's entire death penalty is under scrutiny.
"Now, those people on death row who were denied the constitutional protection to inform the jury of their parole ineligibility will finally have their day in court," former federal public defender Baich said.
"Each case has its own unique facts as to how it will apply to Lynch," he said. "One possibility is that each person could get a new sentencing hearing."
Here are the facts of those cases.
Johnathan Burns: Convicted of 2007 murder near Beeline Highway
Johnathan Ian Burns was convicted in 2010 of the 2007 rape and murder of Jacquelan “Jackie” Hartman. Almost three weeks after the two went on a date, Hartman's body was found in the Sycamore Creek area, off the Beeline Highway. She had two gunshot wounds and blunt force trauma to her head, and detectives recovered sperm matching Burns' DNA from her corpse.
On the night of their date, Hartman had called her sister twice. She asked her sister to meet her at a gas station. Two hours later, she called again, saying she was lost. Burns had taken the phone during the second call and said they would meet her sister there soon. They never showed.
Hartman's blood was found in Burns' truck, and cellphone records showed that for several hours he was in the area where Hartman's body was found. Additionally, police determined that a handgun that Burns' fiancee had bought for him fired a bullet that was found near Hartman's body.
During Burns' trial, the judge rejected his counsel's motion to inform the jury of his parole ineligibility. The judge told the jury that Burns would have a chance at parole in 25 years unless he was sentenced to death.
Steve Boggs: Convicted of 2002 murder at a Mesa Jack in the Box
Steve Boggs was convicted in 2005 of the May 2002 murders of Beatriz Alvarado, 31, Kenneth Brown, 27, and Fausto Jimenez, 30. Christopher Hargrave and Boggs robbed a Mesa Jack in the Box that Hargrave had been fired from a month earlier. They forced the three employees into a cooler and shot them several times in the back before fleeing with money taken from the victims and registers.
Brown died almost immediately from the gunshot wounds. Jimenez and Alvarado were able to escape and call 911 for help before dying from their wounds. Hargrave also was sentenced to death.
At his trial, Boggs did not request that the jury be instructed about his parole ineligibility. When he filed for post-conviction relief in 2018, Boggs argued that the Lynch decision entitled him to a new sentence.
Ruben Garza: Convicted of 1999 double murder in Waddell
Ruben Garza was convicted in 2004 of the December 1999 murder of his uncle’s estranged wife, Ellen Franco, and one of her roommates, Lance Rush, in the West Valley town of Waddell.
Garza had knocked on the door of Franco's home the night of the murder. Once let inside, he shot and killed Franco. Rush was hiding in a bedroom and shot at Garza when he entered the room. Garza shot and killed Rush in response. The trial jury handed Garza the death sentence for Rush's murder, not Franco's.
Garza did not request the jury be instructed about his parole ineligibility in his trial, nor did he argue in his appeal that the court should have instructed them of that fact. Instead, Garza filed for post-conviction relief in 2017 after the Lynch ruling, arguing that the new law entitled him to a new sentence.
Fabio Gomez: Convicted of 1999 murder, rape of Chandler neighbor
Fabio Evelio Gomez was convicted in 2001 of the 1999 murder and sexual assault of a neighbor, Joan Morane. Gomez hit Morane in the head more than 18 times with a metal dumbbell and left her body in an apartment complex trash bin in Chandler.
Gomez did not request the jury be instructed about his parole ineligibility during trial, nor did he argue the fact in his appeal. In 2018, Gomez amended his post-conviction relief petition stating that the trial court failed to tell the jury that he was not eligible for parole under the Simmons and Lynch rulings. He also argued that his trial and appellate attorneys were ineffective for not raising the issue.
Steven Newell: Convicted of the 2011 murder of 8-year-old in south Phoenix
Steven Newell was convicted in 2004 of the 2001 murder and attempted rape of 8-year-old Elizabeth Byrd. He strangled her before dumping her body in a ditch near Southern and 37th avenues.
On the morning of her murder, a witness saw Newell walking closely behind Byrd as she was walking to school. Newell had dated Byrd's sister.
Newell only brought up parole ineligibility in 2018 when he filed for post-conviction review, arguing that the Lynch decision entitled him to a new sentence.
Stephen Reeves: Convicted of 2007 murder in west Phoenix office
Stephen Reeves was convicted in 2011 of the June 2007 murder of Norma Gabriella Contreras, 18.
Reeves entered an office at 73rd Avenue and Indian School Road, where Contreras was working alone, and demanded she give him her car keys and cellphone.
After Contreras tried to press an alarm button, Reeves forced her to the floor and straddled her. During the course of eight minutes, he beat Contreras with a brick, choked her with a stick and slit her throat before stealing her car, cellphone and wallet.
The trial court denied Reeves' motion to instruct the court about his parole ineligibility. On appeal, Reeves argued that fact, but the Arizona Supreme Court rejected his claim. When he filed for post-conviction relief in 2017, he argued that the Lynch ruling entitled him to a new sentence.
Have a news tip on Arizona prisons? Reach the reporter at jjenkins@arizonarepublic.com or at 812-243-5582. Follow him on Twitter @JimmyJenkins.