By Howard Fischer
Capitol Media Services
PHOENIX -- Attorney General Kris Mayes insists that she is "the state.''
But Maricopa County Attorney Rachel Mitchell says she, too, can be "the state.'' So, she said is every other prosecuting agency.
And now the Arizona Supreme Court has to decide who is legally right, with the fate -- and execution -- of at least one man on death row hanging in the balance.
The conflicting claims come in new legal briefs filed with the high court which has to decide who has the statutory authority to seek a warrant of execution.
If the justices side with Mitchell, she has made it clear she will move promptly to get the Department of Corrections, Rehabilitation and Reentry to execute Aaron Gunches. She said he should have been put to death by now except for the fact that an earlier warrant sought by Mark Brnovich, Mayes' predecessor, expired before the execution was carried out.
Mayes, for her part, has yet to seek a new warrant, waiting, at least in part, until a special commissioner named by Gov. Katie Hobbs on her first days in office to study the death penalty completes his report. And that may not be done before the end of the year.
Strictly speaking, Hobbs plays no legal role in whether someone is put to death. But a finding by retired Judge David Duncan that there are problems with the procedure could lead Mayes to further delay future executions until there are changes that make the procedure not just legal but ensure there are no "botched'' executions as has happened in the past.
No matter, Mitchell is telling the justices.
She contends Arizona law says the Supreme Court must issue a warrant of execution if "the state'' files a notice saying that there are no more post-conviction or habeas corpus proceedings. And that, Mitchell said, includes her.
" 'The state' unequivocally includes all prosecuting agencies and prosecutors,'' she wrote in her new pleadings. "What the definition does not say is that 'the state' means the Arizona Attorney General and only the Arizona Attorney General.''
Bottom line, Mitchell said, is she has as much authority to seek a warrant of execution as Mayes.
Gnches pleaded guilty to first degree murder and kidnapping in the 2002 death of Ted Price, his girlfriend's ex husband.
His convictions were affirmed but the death sentence was thrown out. A new jury, however, reinstated the death penalty.
Gunches waived his right to post-conviction review and in November 2022 filed a motion on his own behalf seeking an execution warrant. That was joined the following month by then-Attorney General Mark Brnovich.
But Gunches withdrew that request in January 2023 and Mayes sought to withdraw the warrant.
The high court refused. Only thing is, the warrant -- which has a fixed time limit -- expired before the execution was carried out. And Mayes has refused to seek a new one.
Mitchell in May month asked the Supreme Court to issue a new warrant. And now Mayes telling the justices to ignore her request.
"The attorney general unquestionably maintains the exclusive authority to request a warrant of execution from this court,'' she told the justices in her own filing.
"The Legislature has specifically designated the attorney general the 'chief legal officer of the state,'' Mayes continued.
And that includes the "sole responsibility to prosecute and defend in the Supreme Court all proceedings in which this state or an officer of this state is a party.''
At least some of that, she said, is based on the fact that her office represents the Department of Corrections, Rehabilitation and Reentry which is the agency that would have to carry out any execution.
"Requesting a warrant of execution involves an inherent avowal that the state is prepared to 'carry out the sentence in compliance with state and federal law,' '' Mayes said. "As ADCRR's legal counsel, the attorney general is in a unique position to provide this avowal.''
What all that involves is access to information, including the agency's execution protocols and lethal injection drugs,'' she said, including identifying execution team members, providing training sessions and conducting equipment testing. That also involves confirming that the agency possesses the materials to compound injectable pentobarbital and has retained a compounding pharmacist who can do that within the allocated timeframe.
All that, Mayes said is confidential -- meaning the agency cannot discuss its ability to comply with these procedures with a county attorney.
Mitchell, for her part, points the court's attention to the Victims' Bill of Rights, a set of constitutional and statutory provisions.
Key to that, she said, is ensuring "a prompt and final conclusion of the case after the conviction and sentence.''
In this case, Mitchell said, the victims -- Karen Price who was Ted Price's sister, and Brittney Kay, his daughter -- have asserted their rights and have asked her to help enforce them, something state law legally requires her to do. That, she said, gives her "not only the authority but the duty to do so.''
Whatever the justices rule in this case is likely to have implications beyond Gunches.
There are currently 109 men and three women on death row.
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