By Howard Fischer
Capitol Media Services
PHOENIX -- The top prosecutor in the state's second largest county said it's time for a real study of the death penalty and not just looking at improving the procedures to execute inmates.
Laura Conover said she was glad that Gov. Katie Hobbs and Attorney General Kris Mayes suspended executions in January 2023 to allow a special "death penalty commissioner'' to look at the process.
That commissioner, however, retired federal magistrate David Duncan, was not allowed to complete his report. And Hobbs and Mayes ended the moratorium based on what they said were assurances by Ryan Thornell, the state corrections director, that they have worked out the prior problems that caused the "botched'' executions that led the governor to seek a pause.
But Conover told Capitol Media Services the experience here and elsewhere is that there is no way that executions by lethal injection ever can be done properly. She said the same problems remain in place now that existed before: the inability of the state to get effective drugs and the lack of the use of people who actually are trained to place an intravenous line into the arm or leg of a condemned inmate.
Even if those problems could be overcome, Conover said there are too many issues problems with the whole death penalty process, ranging from the years it takes from conviction to final resolution to the millions of dollars spent by counties, courts and the prison system. And that says nothing about what she sees as inherent inequalities in who get sentenced to death based on everything from race to where in Arizona the offense was committed.
Pima County, said Conover, does have an alternative, all without the problems she said are inherent in putting an inmate to death: life in prison with no chance of release.
"That is, in fact, a different kind of death sentence,'' she said. And Conover said that, once explained to survivors, they agree.
"I have heard time and time again victims' families say, 'That's right,' '' she said. "And God decides.''
And, if nothing else, Conover said, families get a finality that they cannot get waiting for decades while the legal system grinds along.
"The last two executions in Arizona were executions for crimes committed 41 and 42 years earlier, respective,'' she said.
Conover has been able to eliminate the death penalty in Pima County for a simple reason: She has chosen not to seek it..
But having that happen on a statewide basis would take a change in statutes. And the chances of that getting through the Legislature are slim -- at best. In fact, a 2022 proposal by then-Rep. Athena Salman to voters wasn't even given a hearing.
That attitude has not changed.
"The death penalty delivers justice and provides a deterrent to the most heinous crimes,'' Senate President Warren Petersen told Capitol Media Services. Nor is he dissuaded by questions about whether it can be done in a humane fashion.
"If we can put someone to sleep for surgery, then there must be a way do the same for them,'' said the Gilbert Republican.
It's not a partisan issue.
Democrats Hobbs and Mayes, in agreeing to restart the execution process, have shown support for the ultimate punishment.
Even Janet Napolitano, the last Democratic governor before Hobbs -- and the state attorney general before that -- was a supporter of the death penalty.
But Conover, who has never hidden her refusal to seek the death penalty, said her own election -- and reelection just last month -- proves that position is not fatal politically.
Conover beat her foe in the Democratic primary by a 2-1 margin. And the Republicans did not even field a candidate against her, with her only foe being from the Green Party.
None of that convinces Maricopa County Attorney Rachel Mitchell.
"Maybe that's what Pima County wants,'' she said.
"But that's not at the level at which we decide what the law is,'' said Mitchell, who is a Republican. That, she said, is the purview of lawmakers and the governor.
Anyway, Mitchell said, what Conover is doing is irrelevant.
"Let's say we let her go because Pima County's happy,'' she said. "That doesn't control Maricopa County. Maricopa County elected me.''
Mitchell said she not only believes in the death penalty in cases of "the worst of the worst,'' but says it can be carried out humanely.
She was one of the witnesses at the November 2022 execution of Murray Hooper. About the worst thing Mitchell said she saw was Hooper turning to the witnesses when prison staff couldn't find a vein and saying, "Can you believe this?''
"The reality was there was never even a flinch of pain on his face,'' she said. "It was very peaceful, very humane.''
Mitchell said at least part of what took so long is staffers were looking for smaller needle that wasn't in the packet they opened. She said they got a different packet, with the staffer telling Hooper "this will hurt less.''
She acknowledged she did not see the prior two 2022 executions, including one where staffers had to cut into an inmate's leg to find a vein, a process that witnesses said resulted in apparent pain and "a lot of blood.''
That, however, leaves the question that Conover raised of whether a sentence of life without parole provides more finality and closure to families than waiting for decades for a final resolution.
Mitchell said that is discussed with every family in cases where her office might seek the death penalty.
"We explain to them what type of timeline we're looking at,'' she said, noting that she was 13 when Hooper committed the 1980 crime of the killing of two individuals in Phoenix.
"It's obscene how long it is taking, especially in that case, because of all of the things that happened procedurally,'' Mitchell said, including legal fights over whether to allow fingerprint and DNA testing on evidence. She said families "understand that.''
"There are times we have had families come to us and say, 'You know what? I just want this to be over,' '' Mitchell said.
"And we take that into account,'' she said. "But there are other times they come to us and say, 'This is what we want.' ''
Mitchell said though that is "not the deciding factor.''
Conover is not a newcomer to the idea of scrapping the death penalty. She said even in high school, when she wanted to become a public defender, she had doubts.
Those became cemented, she said, with the various stories of how new evidence showed that people on death row had been wrongfully convicted.
That included the high-profile case of Ray Krone who had been convicted of a 1991 murder based on testimony that bite marks on the victim matched his dental patterns -- evidence now viewed with suspicion -- and the lack of DNA testing. He eventually was freed after 3,769 days in prison after DNA eventually excluded him as a suspect.
Mitchell, who gets the last word in her office on whether to seek the death penalty, said her review process is designed to avoid such problems.
"That's why I demand capital-quality evidence,'' she said. That, said Mitchell, deals with not only the strength at the time but whether it will survive the decades it takes between trial and finality "so we make sure we have strong, strong evidence of guilt before I will authorize it.''
And she said that specifically includes DNA evidence, which she called "the gold standard.''
Mitchell did acknowledge that there is a higher percentage of the 111 death row inmates from Maricopa County than its population would suggest. But she called that irrelevant, saying a more populous county is likely to have more violent crime.
She agreed that some smaller counties don't pursue the death penalty because of the overwhelming costs to taxpayers for prosecutors, public defenders and the courts on these kinds of cases. Mitchell said, though, the answer to that is having the state pick up the expense.
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