In dissent, Arizona Appeals Court judge calls death penalty unconstitutional

Michael Kiefer | The Republic | azcentral.com

The Arizona Supreme Court on Thursday upheld the convictions and death sentences of Jason Eugene Bush, an anti-immigrant militia member who killed two people in Pima County in 2009.

It was no surprise.

If the death penalty is truly reserved for the most heinous murderers, few people are more qualified than a man who shoots a 9-year-old girl in the face as she pleads for her life after he just shot and killed her father and wounded her mother in front of her.

What was a surprise was a dissent from an Arizona Court of Appeals judge asked to fill in for one of the court justices who had recused himself from the case.

In recent years, the Arizona Supreme Court has dodged questions about the constitutionality of the death penalty. It's an issue that was knocking at the door of the U.S. Supreme Court earlier this year but was sent packing by a message from Justice Stephen Breyer to come back with a better case.

On Thursday, in comments reminiscent of Breyer’s remarks on the death penalty, Judge Lawrence Winthrop declared in a dissent to the Bush opinion that the death penalty as imposed in Arizona violates the state Constitution.

Winthrop referred to the botched 2014 execution of Arizonan Joe Wood, who gasped and snorted on the gurney for nearly two hours, as evidence that execution is cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution.

He cited costs and discrepancies as to who gets the death penalty from county to county in Arizona, criticized the length of time it takes before an execution takes place, the number of sentences overturned, and its failure as a deterrent.

“The death penalty not only inflicts unnaturally cruel punishment, but the application and implementation of the death penalty is, at best, arbitrary and capricious, and therefore constitutionally ‘unusual,’ and violative of (the state Constitution),” he wrote.

RELATED: Is the death penalty in Arizona on life support?

The response from the court majority was chilly.

“The dissent is odd on several levels,” said a response authored by Justice John Pelander within the majority opinion. “It purportedly rests on the Arizona constitution’s prohibition of cruel and unusual punishment because, as the dissent acknowledges, binding United State Supreme Court precedent has rejected Eighth Amendment challenges to the death penalty.”

Winthrop did not cite standing Arizona law precedents, Pelander continued, but rather Supreme Court dissents.

“This approach is fruitless,” Pelander wrote for the majority. And he concluded that the Bush case “is not the appropriate case to address or decide the validity of capital punishment under Arizona’s Constitution.”

Cruel and unusual? AP reporters describe prisoner executions Midazolam is supposed to prevent condemned prisoners from suffering while they die. But opponents say several problematic executions involving the drug are evidence that it doesn't work consistently.

What did Jason Bush do?

It was a brutal set of murders with the sort of aggravating factors that qualify it as a capital case.

Bush was one of three would-be militia members who came to the door of Raul Flores’ house in Arivaca, Arizona, in 2009, claiming to be law-enforcement officers. He and his co-defendants, Shawna Forde and Albert Gaxiola, thought they would find drugs and money they could use to fund their anti-immigrant agenda. But there were no drugs or money.

Flores asked why Bush’s gun was covered in duct tape, according to Thursday’s opinion, and Bush answered, “Don’t take this personally, but this bullet has your name on it.” He shot Flores several times.

Bush also shot Flores’ wife, Gina Marie Gonzalez, who pretended to be dead. Then Bush told the child, Brisenia, that he wouldn’t hurt her, then shot her twice in the face.

Gonzalez was able to find a gun and shoot back, wounding Bush in the leg.

Forde and Bush were sentenced to death and Gaxiola to natural life in prison.

Death penalty under scrutiny

Direct appeals to the Arizona Supreme Court are mandatory in death-penalty cases. The justices affirmed Bush's convictions on two counts of first-degree murder, aggravated assault, armed robbery and other charges. They also affirmed his death sentences.

Winthrop's dissent does not occur in a vacuum.

Arizona's sentencing in first-degree murder cases — both life and death sentences — has been under attack in the courts.

In recent years, parole eligibility was restored for juvenile killers because of a U.S. Supreme Court decision.

Earlier this year, parole eligibility was restored for people with certain plea agreements after a sentencing issue was raised in an Arizona Republic series. Death sentences have been knocked down because Maricopa County prosecutors let jurors believe they had to impose death sentences, lest the killer someday be granted parole — which was abolished in 1993.

MORE: Arizona Supreme Court tosses 4th death sentence for misleading statements

And in March, the U.S. Supreme Court refused to take a case alleging that Arizona death sentences are sought largely at the whim of prosecutors. Usually, cases are rejected without comment, but Justice Breyer added a note scolding the attorneys for not having an adequate record of evidence to go forward.

Fewer capital cases tried in state

No one has been put to death in Arizona since the Wood execution. And though a federal injunction against executions has been lifted, there are none scheduled at present.

Also, the number of capital cases tried in the state has diminished greatly. According to figures discussed Friday at a meeting of the state Capital Case Oversight Committee (composed of judges, administrators, prosecutors and defense attorneys and convened by the state Supreme Court), Maricopa County Superior Court has 47 death-penalty cases in progress. That is down from 58 last year — and down from more than 120 a decade ago.

Maricopa County still has the most capital cases by far. Pinal County has eight cases, mostly that come out of the prisons in and around Florence, Yavapai County has two. The rest of the state's counties, including the larger Pima and Yuma counties, have none. In some smaller counties, there are no capital cases because they don’t have the money to try to defend them.

RELATED: Anti-death penalty group calls on Arizona to end capital punishment

In an article published in 2015 in a national law journal, two other Arizona Court of Appeals judges, Paul McMurdie and Kent Cattani, called attention to the cost of defense, the cost of incarceration for the 20-plus years it takes to carry out an execution, the number of overturned sentences and the motives of the people making the decisions about which cases to try.

"Given the current cost of pursuing the death penalty and given the current rate at which the punishment is actually carried out, maintaining the status quo makes little sense," they concluded. "The time has come to rethink the process by which the decision to seek the death penalty is made, including the determination as to how often and in what cases capital punishment should be sought."

Both judges declined to comment on Friday. Before they were judges, McMurdie handled death-penalty appeals for the Maricopa County Attorney’s Office and Cattani for the Arizona Attorney General’s Office.

These are thorny issues in a tough-on-crime state.

The Attorney General’s Office declined to comment on Winthrop's dissent, and the Pima County Attorney’s Office (which tried the Bush and Forde cases) did not respond to requests for comment.

Dale Baich of the Federal Public Defender’s Office did comment.

“Over the last forty-five years, Arizona has been trying to make the death penalty work,” he said. “Those efforts have largely failed. The dissent provides a framework for a fair and honest debate in Arizona as to whether the death penalty is sound public policy or is a relic from our past that we should abandon. Let’s hope our leaders in the Legislature will take serious strides to begin the discussion.”

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