Can the Arizona Supreme Court order Gov. Katie Hobbs to kill a man?

An unusual request from the sister of a murdered man. [Update: Hobbs responds, says request "must be denied."] Also: Jurors reject Biden administration's first attempt to send a person to death row.

Mar 15, 2023

The Arizona Supreme Court is currently considering a request by a murder victim’s sister that it order Gov. Katie Hobbs and the head of Arizona corrections department to execute the man convicted of her brother’s murder next month.

The Arizona Republic’s Jimmy Jenkins reported on Tuesday on the legal filings that started this latest chapter in the case of Aaron Gunches, as did 12 News’s Brahm Resnik, who posted the relevant documents.

After the prior Republican statewide elected officials began the process of getting an execution date set for Gunches, who pleaded guilty to the 2002 murder of Ted Price and was sentenced to death, Arizona’s newly elected Democratic officials, Gov. Katie Hobbs and Attorney General Kris Mayes, took steps to stop executions from proceeding. These included Hobbs setting up an independent review of the state’s execution procedures and Mayes asking the Supreme Court to withdraw the execution request.

The state’s Supreme Court went ahead anyway, issuing a warrant that sets Gunches’s execution for April 6.

Hobbs said that, given the ongoing review, she would not proceed with the execution. From the AP report on March 3:

“Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

That might have been the end of it, but on March 10, Ted Price’s sister, Karen Price, invoked the state’s victims’ right law and asked the Arizona Supreme Court to order Hobbs and the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) to carry out the execution. From Price’s brief, filed with support from Arizona Voice for Crime Victims:

victim has standing to bring a special action seeking to enforce any right or to challenge an order denying any right guaranteed under Arizona’s Victims’ Bill of Rights (VBR), Ariz. Const. art. II, § 2.1. A.R.S. § 13-4437(A); Ariz. R. P. Spec. Act. 2 (a)(2). Here, without authority, the Governor is threatening to deny the victim her state constitutional rights to justice and finality.

Republican Maricopa County Attorney Rachel Mitchell weighed in with an amicus brief supporting Karen Price’s request.

In the absence of any constitutional prohibition, no law allows the Governor to unilaterally suspend executions. In fact, the Governor’s unilateral decision to ignore this Court’s Warrant violates the Legislature’s constitutional authority to limit her reprieve power, which it has done by requiring a recommendation from the Arizona Board of Executive Clemency (“ABOEC”) before the Governor may grant a pardon, reprieve, or commutation. The Governor’s unilateral suspension of executions violates Arizona’s Constitution and laws. This Court should recognize that the Governor and ADCRR director must carry out executions consistent with Arizona law.

A murder victim’s sister asked the Arizona Supreme Court to order the governor to kill the man who pleaded guilty to that murder, despite the fact that the governor put executions on hold due to “a history of executions that have resulted in serious questions about [the state’s] execution protocols and lack of transparency.” A local prosecutor has weighed in to say that the governor can’t, as the state’s chief executive, ensure that the state is carrying out executions without the risk of more botched executions.

The Arizona Supreme Court set a very rapid briefing schedule on Monday to consider the matter, with responses due by 5 p.m. MT today and a reply from Price due by 3 p.m. MT Thursday.

[Update, 10:30 p.m.: Arizona Gov. Katie Hobbs, represented by her office’s counsel, and ADCRR Director Ryan Thornell, represented by Attorney General Kris Mayes’s office, responded to the petition on Wednesday.

In doing so, they noted that the Arizona Supreme Court order issued along with the Gunches’s death warrant “repeatedly emphasized that a warrant authorizes an execution,” in accordance with Arizona law, it does not require it. The brief continues:

Petitioner now seeks a writ of mandamus ordering the Director to execute Gunches on April 6, 2023. But mandamus relief is rare, discretionary, and in this context requires Petitioner to demonstrate the existence of a clear legal duty to execute Gunches on the specified date. Neither the governing statute nor any other source of law impose such a clear and mandatory legal duty on the Director. The statute instead provides that a warrant “authorizes” an execution. And even if the statute were ambiguous (which it is not), separation of powers and constitutional avoidance principles counsel against interpreting the statute as Petitioner seeks. The petition for a writ of mandamus must therefore be denied.

Along with the legal arguments, the state officials filed a declaration from Thornell, who has only been on the job for six weeks, laying out what problems he has identified, thus far, that make carrying out an execution on April 6 — as the brief puts it — “unprecedented, contrary to law, and contrary to the public interest.”

In Thornell’s declaration, in the section relating to lethal injection capabilities specifically, he raises serious concerns about both Arizona’s drug supply — a lack of documentation and information that “the prior administration … met the contracted pharmacist through a chance encounter” — and the lack of availability of an IV team, which is needed to carry out an execution.

As to the Pentobarbital:

.15. The Department's current supply of compounded Pentobarbital, the lethal injection drug, requires updated efficacy testing to ensure sufficient quality and effectiveness in the execution. I have yet to find documentation from the prior administration that identifies the pharmacist who compounded the drugs. I have been able to gather anecdotal accounts from staff members who have shared that the prior Deputy Director was the main point of contact with the pharmacist and that he didn't record anything. As mentioned above, this person is no longer with the Department. 16. Based on these conversations, I have serious concerns about the qualification and competency of the compounding pharmacist and the process used to compound the current supply of lethal injection drugs. To cite one example underlying my concerns, a staff member informed me that the prior administration struggled to find a pharmacist and met the contracted pharmacist through a chance encounter. At this time, there is no known information about the contract that was used for procuring this service.

As to the IV team:

23. Despite attempts, no IV team has yet been identified as available for contracting to perform an execution on April 6, 2023. 24. As with other matters mentioned above and below, the information I've been able to obtain thus far causes me concern. For example, I have been told that IV team members who participated in the most recent execution were directed by the prior administration to only use the inmate's femoral central line, which goes against Department policy. New IV team members must be identified and trained on proper procedure prior to an execution, which will require advance planning and work for staff that are already over-extended.

Murray Hooper was executed on Nov. 16, 2022, the “most recent execution” in the state. He was 76 years old.

This — and other information in the declaration — is significant information that corrections departments try to hide and that defense lawyers will be using far beyond this case.]

Also of note, three of the justices — Justices James Beene, John Lopez IV, and William Montgomery — are recused from the case and one retired justice, John Pelander, will be sitting on the case by designation of Chief Justice Robert Brutinel.

More to come on this as this story develops.

The Biden administration’s Justice Department failed on Monday in its first attempt to send someone to federal death row this week, when jurors in New York did not reach unanimity on whether to sentence Sayfullo Saipov to death for the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more.

Saipov will, instead, be sentenced to life in prison with no possibility of parole.

Law Dork had covered this case — and the Justice Department’s decisions — previously. The attempt to secure a death sentence for Saipov, which continued through the final day of the jury’s deliberations, came after then-candidate Joe Biden pledged to end the federal death penalty altogether and as Attorney General Merrick Garland has in place a moratorium on federal executions.

It’s not clear whether Garland, who personally approved prosecutors’ decision to continue seeking death in Saipov’s case, will take the result into consideration when deciding whether to allow the department to seek the death sentence in other cases.