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ARIZONA HOUSE OF REPRESENTATIVES
Forty-fifth Legislature – Fifth Special Session
Minutes of Special Meeting
House Hearing Room 3 -- 1:30 p.m.
(Tape 1, Side A)
Chairman Voss called the meeting to order at 1:45 p.m. and attendance was noted by the secretary.
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Mrs. Binder |
Mr. Hershberger |
Mr. Tully, Vice-Chairman |
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Mr. Brotherton |
Mr. Nelson |
Miss Voss, Chairman |
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Mr. Camarot |
Mr. Pierce |
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Mrs. Foster |
Mr. Sedillo |
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None |
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H.B. 2001 – DPA (7-3-0-0) |
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Amy Bjelland, Majority Research Analyst
Janet Napolitano, Attorney General, State of Arizona
Richard Romley, County Attorney, Maricopa County
Jerry Landau, Special Assistant, Maricopa County Attorney’s Office
Paul McMurdie, Deputy County Attorney, Maricopa County
George Weisz, Criminal Justice Policy Advisor for the Governor
Cindy Scott, representing herself, Gilbert
Steve Twist, representing himself, Phoenix
Names of people recognized by Chairman Voss who appeared in support of H.B. 2001 but did not speak (pages 10 and 11)
Eleanor Eisenberg, Executive Director, Arizona Civil Liberties Union (ACLU)
Richard Eatun, representing himself, Litchfield Park
Beth Hendrickson, representing herself, Phoenix
Sally Goelzer, representing herself, Phoenix
John Hinz, representing himself, Phoenix
Monsignor Edward Ryle, Director, Arizona Catholic Conference
James Hamm, Middle Ground Prison Reform
Julie Hall, representing herself, Tucson
John Stookey, representing himself, Phoenix
Marty Lieberman, representing himself, Phoenix
Sharon Boryczewski, representing herself, Tucson
Names of people recognized by Chairman Voss who appeared in opposition to H.B. 2001 but did not speak (pages 14, 15, 16 and 17)
Sharon Robertson, representing herself, Cave Creek
Jennifer Bedier, representing herself, Tucson
Casey Espinoza, representing himself, Phoenix
Joseph Gutierrez, representing himself, Phoenix
Alan Simpson, representing himself, Phoenix
Bret Huggins, representing himself, Florence
Guest List (Attachment 1)
CONSIDERATION OF BILL:
Amy Bjelland, Majority Research Analyst, reviewed the provisions of H.B. 2001 relating to jury sentencing (Attachment 2). She advised that in Ring v. Arizona, the U.S. Supreme Court held that Arizona’s death penalty sentencing statute violates a defendant’s Sixth Amendment right to a jury sentencing. The Court declared that a jury, not a judge, must determine whether any aggravating circumstances exist.
Ms. Bjelland explained that H.B. 2001 provides for jury sentencing in capital cases in compliance with the Ring decision. After a defendant is found guilty of first degree murder beyond a reasonable doubt, the jury enters into two phases, the aggravating phase and the penalty phase. During the aggravation phase, the jury makes findings on each alleged circumstance, with three possible outcomes:
· The jury can unanimously agree that one or more aggravators exist and the trial moves immediately to the penalty phase.
· The jury may unanimously agree that one or more aggravators do not exist, resulting in the dismissal of the jury. The judge then determines a sentence of life or natural life in prison.
· The jury may be unable to come to a unanimous verdict on one or more aggravators, resulting in a new jury being impaneled. If the second jury is likewise hung on the aggravators, the defendant will be sentenced to life or natural life in prison by the trial judge.
Ms. Bjelland explained that during the penalty phase, the defendant may present any mitigating circumstances. The jury weighs the mitigating circumstances against the aggravating circumstances. Victims have a right to be present and make an impact statement but may not make any recommendation regarding the sentence to be imposed. The penalty phase may result in the following:
· If the jury unanimously finds that a death sentence is appropriate, that is the sentence imposed.
· If the jury unanimously finds that death is not appropriate, the court will then determine whether to impose a sentence of life or natural life in prison.
· If the jury is unable to reach a unanimous verdict, a new jury will be impaneled. If the new jury is also unable to reach a unanimous verdict, the court shall dismiss the jury and impose a sentence of life or natural life.
Ms. Bjelland advised that the bill contains applicability, severability, intent and emergency clauses.
Ms. Bjelland explained the Brotherton 24-line amendment dated 7/30/02 strikes the provision that increases the standard of review to an abusive discretion standard and replaces it with the current de novo standard (Attachment 3). The Supreme Court could substitute its own judgment in place of the trial court.
In response to Mr. Nelson, Ms. Bjelland explained that when a person is sentenced to death, he has a direct appeal to the Supreme Court. The term de novo means that the Court looks at the facts presented at trial and makes an independent review of the outcome of the trial. The Court could change the sentence from death to life in prison, send the case back to the trial court for re-sentencing, or send the case back for re-trial. An abusive discretion standard makes it more difficult to overturn a decision at the trial court level. The Supreme Court would have to find that the decision was arbitrary or capricious. Mr. Nelson pointed out that this amendment gives the court the right to reverse the jury. Ms. Bjelland concurred. She revealed that even with the de novo standard, only eight capital defendants have had their sentences commuted to life. Mr. Nelson noted that this amendment attempts to supplant the jury decision by another court, and Ring does not say that.
Mrs. Foster queried whether the amendment conflicts with Ring. Ms. Bjelland replied that it is not in conflict. The Ring decision only addresses the issue of a jury determining the aggravating factors.
Mr. Brotherton clarified that the bill goes further than Ring which provides that the jury will determine the aggravating factors. He said his amendment basically changes it back to current law. Ms. Bjelland agreed.
Ms. Bjelland explained the Sedillo 23-line amendment dated 7/31/02 prohibits the state from carrying out any sentence of death until deoxyribonucleic acid (DNA) testing has been completed for all persons in Arizona on death row (Attachment 4). In addition, the Department of Corrections (ADOC) is required to obtain a blood sample for DNA testing and requires the Department of Public Safety (DPS) to analyze the samples.
Chairman Voss questioned how the amendment affects someone where no DNA testing was taken. She wondered if this precludes someone from the death penalty if there is no DNA available. Mr. Sedillo said he does not know; however, he assumes there would be some type of evidence available at the crime scene for testing.
Mrs. Binder stated her understanding that DNA testing is already being done, and that this amendment is not needed. Ms. Bjelland noted that defendants can request DNA testing as part of their appeals process.
Ms. Bjelland explained the Sedillo 11-line amendment dated 7/31/02 prohibits the death penalty for minors (Attachment 5). The amendment provides that if a minor under the age of 18 was sentenced to death prior to the effective date of this act, the sentence would be commuted to natural life.
Ms. Bjelland explained the Sedillo seven-line amendment (no date) removes the ability to impanel a new jury in the aggravation and penalty phases when the jury is unable to reach a unanimous verdict (Attachment 6). Instead of impaneling a new jury, the trial judge would impose a life or natural life sentence.
Mr. Pierce asked the age restriction in Arizona. Ms. Bjelland replied that there is no age restriction in statute; but the U.S. Supreme Court has held that it violates the Eighth Amendment’s prohibition against cruel and unusual punishment to put somebody to death if they committed their crime prior to the age of 16.
Janet Napolitano, Attorney General, State of Arizona, testified in support of H.B. 2001. She advised that on June 24, 2002, in Ring v. Arizona, the U.S. Supreme Court ruled that the judge-sentencing provision of the Arizona death penalty statute violates the right to a jury trial in the Sixth Amendment of the U.S. Constitution. On June 24, a letter was sent to Governor Hull and to all county attorneys recommending that all sentencing in death penalty cases be suspended in light of the Ring decision (Attachment 7). H.B. 2001 is the result of extensive discussion between stakeholders, including prosecutors, judges, defense attorneys, victim advocates, etc. The victims of the 131 defendants now on death row were contacted and advised of the proposal. The proposed legislation provides for a jury to not only consider the aggravating and mitigating circumstances, but to also weigh them and decide the ultimate sentence in a death penalty case. While Ring could be interpreted to apply only to a finding of an aggravating circumstance and still permit the judge to impose the penalty, she urged the Legislature to reject that approach because it may not be constitutionally sound.
Attorney General Napolitano referred to concerns raised by some Legislators regarding DNA testing of death-row inmates. A letter was sent to Senator Pete Rios to explain how DNA testing has been addressed by the Attorney General’s Office (Attachment 7). The Attorney General’s Office stipulates to DNA testing whenever it is requested by a defendant. She said her Office is and will continue to be pro-active in DNA testing in capital cases.
Attorney General Napolitano brought up the recommendation by the Capital Case Commission that this issue be referred to the ballot. She advised that she formed the Attorney General’s Capital Case Commission about two years ago to conduct a review of the state’s capital case system to insure that the system is fair, timely and orderly. She related that the Commission voted to recommend to the Legislature that the issue of continuing the death penalty be referred to the voters; however, she said she does not agree with that recommendation. Motions made by the Commission are attached (Attachment 7).
Attorney General Napolitano contended that further delay in resolving this issue permits additional defendants to claim the death penalty is inapplicable to them. She believes this is unfair to the victims of those murdered and to the majority of the people of Arizona who support the death penalty.
Mr. Brotherton questioned the reason for amending the statute beyond Ring. Attorney General Napolitano opined that not having the jury make the ultimate finding would result in another litigation challenge.
Mr. Brotherton asked whether there is a Supreme Court case that states an independent review will cause a constitutional problem. Attorney General Napolitano answered there is no Supreme Court case that says after a jury finding, you cannot have an independent review by a higher court.
In response to Mr. Brotherton, Attorney General Napolitano stated her position on considering legislation beyond Ring. She believes anything else needs further exploration and evaluation because of the many issues involved.
In response to Mr. Camarot about DNA testing, Attorney General Napolitano related that her Office continues to be proactive on the DNA issue; however, most death-row cases revolve around other issues. She thinks this bill is fair and balances competing interests. She said she believes those inmates currently on death row whose direct appeals have been exhausted cannot take advantage of the Ring decision to have their cases re-opened. The 30 defendants under direct appeal are the ones who are at issue now because of Ring.
Mrs. Foster expressed concern about jury bounce-back, and asked whether this legislation allows for one bounce-back. Attorney General Napolitano clarified that the bill allows for one bounce-back per phase. If the jury hangs, the case becomes non-death eligible and the matter goes back to the judge to make a determination of whether the sentence should be life or natural life.
Mrs. Foster queried whether the death penalty is off the table once those two opportunities are exhausted. Attorney General Napolitano replied in the affirmative.
In response to Mrs. Foster regarding the constitutionality of bounce-back, Attorney General Napolitano answered that she does not believe constitutionality is an issue.
Mrs. Foster brought up the moratorium issue. Attorney General Napolitano expressed disagreement with instituting a moratorium because it puts the system in limbo. A moratorium should include discussion of whether to have the death penalty or to repeal it.
Mrs. Foster queried the cost involved in re-opening the 30 cases that fall under Ring. Attorney General Napolitano said it will involve the cost of re-assembling prosecutors, investigators, etc., to reopen those cases. Cost of each case will be different because of the various factors involved.
Mr. Hershberger opined that whatever the Legislature does will be litigated and decided in the courts. He questioned whether re-impaneling the same jury will be one of the issues that will be litigated. Attorney General Napolitano responded there is no obligation to impanel the same jury.
In response to Mr. Brotherton’s query about his amendment on independent review, Attorney General Napolitano said she does not think the issue of independent review should stop this bill from going forward.
Mr. Pierce asked whether the U.S. Supreme Court Decision was impacted by the make-up of the Court and the Attorney General’s past relationship with members of the Court. He asked why Attorney General Napolitano felt she was the best person to argue before the Court. Attorney General Napolitano replied that she finds the question highly offensive. Mr. Pierce apologized and explained the reason for his question is because he is looking toward the future of the state from a strategy standpoint. Attorney General Napolitano defended her decision to represent Arizona before the U.S. Supreme Court. She stated that she is an appellate expert. She said she has argued in every appellate court in the nation and in the World Court. She claimed she is one of the most persuasive oral advocates of this state. She stressed it is her obligation to represent this state before the U.S. Supreme Court on issues involving this state’s statutes.
Mr. Pierce asked for an opinion of the Sedillo amendment relating to the age standard. Attorney General Napolitano said she opposes the amendment. She submitted that the standard set by the courts for the 15 and below age group is sufficient; however, some crimes committed by 16 and 17-year olds are horrific and need to be evaluated on a case by case basis.
Mr. Pierce brought up the DNA amendment proposed by Mr. Sedillo.
(Tape 1, Side B)
Attorney General Napolitano said the issue is the retention of DNA. As technology improves, retention of DNA is a valuable tool in all homicide cases.
Mr. Pierce expressed concern over the Brotherton amendment relating to the de novo standard. He said he prefers the standard of abusive discretion. Attorney General Napolitano reiterated that she does not think the amendment should keep this bill from moving forward. She does not believe standards of review make much of a difference. If the court wants to reverse, it can do so. She remarked that it is not a critical issue. The critical issue for this Committee is determining that the jury should not only hear the aggravating circumstances, but should weigh them and impose the sentence of death. She urged Members to pass this legislation. Mr. Pierce said he feels it is important to ensure the standard for reversing the jury is very high.
Mr. Sedillo questioned why it is imperative the Legislature take action on this issue at this time. He commented there are numerous issues that can be debated at length. Attorney General Napolitano explained the reason to move expeditiously is because there are cases pending trial and cases that are pending sentences. With no capital punishment statute in effect, defendants are requesting speedy trial and sentencing rights because of this window.
Mrs. Foster raised the issue of error rate. Attorney General Napolitano stated there has been no error on her watch. She thinks the basic point is to ensure that those who are executed deserve the death penalty.
Mrs. Foster asked whether the Attorney General feels the people of this state have the confidence in her for her to have decided she was the best person to litigate Ring before the U.S. Supreme Court. Attorney General Napolitano emphatically stated there is no better person.
Richard Romley, County Attorney, Maricopa County, asked for support of H.B. 2001. He stated this is a bipartisan bill. The bill conforms Arizona law to the Ring Decision. In considering this legislation, it is important to remember those individuals who have been murdered and their families to ensure that justice is done. This legislation is about bringing back a sentencing structure that will allow justice to be done. He asked that this legislation be passed and the death penalty law restored.
Mr. Camarot questioned the statement made about this being a bipartisan bill. County Attorney Romley answered that the bill was the consensus of the Attorney General’s Capital Case Commission consisting of both prosecutors and defense attorneys. He advised that not all members of that Commission agreed on all the issues; however, he defended the bill as the fairest procedural fix for Arizona’s laws at this time.
Mr. Sedillo asked why the judicial review was taken out. County Attorney Romley disclosed that Arizona allows for independent review on judge sentencing at the present time. With Ring, there is still automatic review by the courts if there is an abuse of discretion or a legal error.
Mr. Sedillo stated his concern about the fiscal impact of this bill. County Attorney Romley said this legislation will have a tremendous fiscal impact on counties for cases that will have to be re-considered for sentencing. In Maricopa County, $1.3 million is the estimated cost of handling the 11 cases that have already been sentenced. He said this does not include the 56 capital cases going to trial.
Mr. Brotherton referred to the comment made that abusive discretion was a minimal standard. His understanding is that it is the highest bar. County Attorney Romley explained that his comment related to a minimal standard to show abusive discretion by the jury. He personally does not believe Arizona’s Supreme Court should be able to overturn a jury’s decision without some type of reason. He believes it is philosophically inconsistent with the Ring Decision. The courts can still overturn if there is legal error or abusive discretion.
Discussion ensued on the Krone case.
Mr. Brotherton noted that Mr. Krone was tried and sentenced to death. When the case was retried, the judge had concerns about the guilt of Mr. Krone and instead imposed a life sentence. He said the independent review acted as a fail-safe in this case. He pointed out that an innocent man’s life was saved because of the judge’s discretion. County Attorney Romley disagreed that was independent review. He said it was a matter of legal error.
Mr. Brotherton argued that both time and new DNA technology worked to exonerate Mr. Krone, and are reasons for eliminating the death penalty. County Attorney Romley said he is frustrated when he hears the implication that people have been executed improperly. He said he knows of no one in this country that has ever been executed who was really innocent. He referred to a document being circulated by opponents of the death penalty listing over 100 individuals on death row who are innocent (Attachment 8). He stated the information in that document is false. He agreed that diligence must be taken to ensure an individual is guilty, and maintained there is an appropriate process in place and a system of checks and balances.
County Attorney Romley briefly reviewed the facts of the Krone case, and said the evidence led to a conviction. Subsequently, it was found that an error had been made. He said all he can do is to try to make sure justice is done when he has the facts before him. He insisted that this bill is needed now. People are waiting to have their case proceed in the system.
Mr. Brotherton stated his concern about waiting to look at the death penalty issue until an innocent person is put to death.
Chairman Voss asked that the issue of abolishing the death penalty not be raised because that is not relevant to this legislation.
Chairman Voss asked the length of time someone stays on death row after being sentenced.
County Attorney Romley said the point is that improving the time between the trial and the sentencing does not change any of the procedural safeguards in place to ensure that mistakes are not made. He noted that after sentencing, a person is on death row approximately 20 years.
Mr. Sedillo queried whether the trial court is being taken out of this bill. County Attorney Romley clarified that the authority of the court is not removed by this bill. Currently, under Rule 20, the court can enter a directed verdict if it does not believe the evidence supports the charges. Under Rule 24, the judge can order a new trial. He said neither Rule changes. The only change is that on the question of death, the jury will make that decision. If the jury decides against the death penalty, it goes back to the judge to determine whether the sentence is 25 to life or natural life.
Mrs. Foster commented that the information provided by the County Attorney on the Krone case reinforces her position of being against the death penalty.
Mrs. Foster asked if there is an issue of imposing the death penalty in a fair way versus extenuating circumstances, such as who the victim is. County Attorney Romley advised that the Capital Case Commission reviews all factors to determine whether the death penalty is being imposed in a fair and impartial manner. He said there does not seem to be a racial disparity. He related his Office seeks the death penalty in about 30 percent of all first-degree murder cases. Judges impose the death penalty in about three percent of those found guilty. This shows there is a rigorous process in place before the death penalty is imposed. He said he believes this legislation provides adequate safeguards and leaves in place all other safeguards.
County Attorney Romley agreed with Mrs. Foster that this issue needs continued debate. It is a very serious issue. He advised that he does support the death penalty and believes it is appropriate in certain circumstances.
(Tape 2, Side A)
County Attorney Romley concurred with Mrs. Foster’s comments about being more pro-active at the front end of the system, not only to apprehend but to exclude the innocent.
In response to Mrs. Foster, County Attorney Romley expressed opposition to a moratorium. He said the death penalty issue is a huge legal topic involving a lot of concerns that need to be addressed. He feels that the issue needs to be decided by the Legislature and not by a vote of the public. Mrs. Foster agreed that the Legislature should decide the issue.
Mr. Pierce asked whether there is concern that the death penalty is not applied fairly. County Attorney Romley said there is nothing that causes him concern to change any of the processes by which he handles death penalty cases in his Office. County Attorney Romley raised the concern about Justice Stanley Feldman, a member of the Capital Case Commission, and whether he should be considering matters that come before the Supreme Court. He questioned whether there can be a fair debate because of politics and misconstrued facts. Mr. Pierce said it is troubling to him to have judges who are also activists.
Mr. Brotherton brought up jury instructions in the penalty phase.
Jerry Landau, Special Assistant, Maricopa County Attorney’s Office, said it is contemplated there will be jury instruction in the penalty phase.
Paul McMurdie, Deputy County Attorney, Maricopa County, advised that under this legislation it would be appropriate to instruct the jury of other options that are available to the court should the jury not find for the death penalty.
Mr. Brotherton asked whether there is a legal problem with putting the jury instruction in statute. Mr. McMurdie replied in the negative but advised against that.
Mr. Landau indicated that the wording of the instruction in statute poses concern.
Mr. Nelson asked whether the issue will resurface if wording is found to be a problem after it is codified in statute. Mr. Landau said that is the issue if the Supreme Court changes the wording.
George Weisz, Criminal Justice Policy Advisor for the Governor, spoke in support of H.B. 2001. He advised the Governor is satisfied with the language in this bill. It is prudent and appropriate language. He explained the reason action needs to be taken on this is because the state does not have a death penalty in statute now because of the Supreme Court Decision. Judges are advising that something needs to be done within 30 days so they can continue with current cases.
Mrs. Foster asked whether it is feasible to change the standard to “beyond any doubt” rather than the current standard of “beyond a reasonable doubt” in a sentence of death. Mr. Landau replied the standard of proof in a criminal case has always been “beyond a reasonable doubt.”
Cindy Scott, representing herself, Gilbert, testified in support of H.B. 2001. She advised that her sister was killed in 1996 by a sexual predator. The perpetrator was given the death sentence. She and her family support the death penalty and are against a moratorium. She said every appeal process puts stress and strain on the victim’s family. The victim’s family is able to be present at the proceedings but cannot show emotion nor can the family speak. She maintained that victims’ families should have the right to speak during the sentencing phase. The whole system is set up to give fairness and to protect the defendant. She argued that the state owes the families of victims the right to speak and to request the death penalty. The state has the obligation to protect and defend the rights of victims and their families. She asked that the death penalty not be abolished and that a moratorium not be imposed.
Steve Twist, representing himself, Phoenix, expressed support of H.B. 2001. He asked that a verbal amendment be offered to strike language on page 7, lines 10 through 13 that prohibits the victim’s family from making a sentencing recommendation to the court. The language violates Arizona’s constitutional protection for crime victims to be heard at any proceeding involving sentencing. He insisted this is an issue of civil rights, and not an argument for or against the death penalty. A victim’s family should have the right to tell the judge what the impact of the crime has done to the family. He distributed a handout on this issue (Attachment 9). He maintained that it is profoundly unfair to continue the practice of not allowing the family to stand up in court and make a recommendation to the court. Whether the victim is for or against the death penalty, this issue is a matter of a civil right protected by the Arizona Constitution. He urged passage of H.B. 2001 with a proposed amendment to delete that language.
Due to time constraints, Chairman Voss asked that testimony be kept specific on whether or not to pass this legislation.
Chairman Voss announced that she had a Request to Speak form from the following person who is in favor of House Bill 2001:
Carol Martin, representing herself, Glendale
Eleanor Eisenberg, Executive Director, Arizona Civil Liberties Union (ACLU), objected to a time limit being placed on opponents of the bill. She pointed out that the proponents were allowed three hours to present their position and said it is unfair to limit everyone else. Chairman Voss said she is trying to get to that point where everyone will have the same amount of time to speak.
Richard Eatun, representing himself, Litchfield Park, testified that in the late 1980’s, his cousin and her husband were murdered in their own home, and the perpetrator has been on death row for 14 years with all his appeals exhausted. He said he wants to see the death penalty reinstated. He asked that the issue not be put to a vote. It is the Legislature’s responsibility to take action.
Beth Hendrickson, representing herself, Phoenix, spoke in support of H.B. 2001. She related that on May 17, 2001, she found out that her pregnant daughter and her boyfriend had been murdered. The person responsible for the murders was found guilty of first-degree murder and is currently awaiting sentencing. She said she has always wavered on the death penalty issue. After what happened to her family, she does not want any other family to experience this kind of grief. She asked Members to consider the rights of the victim and the impact that decisions will have on the victims’ families.
Chairman Voss announced that she had Request to Speak forms from the following people who are in favor of House Bill 2001:
Christy Parker, representing herself, Phoenix
Mark Milke, representing himself, Glendale
Sally Goelzer, representing herself, Phoenix, expressed support of H.B. 2001. She said her brother was a victim of a crime and testified at a trial that resulted in a hung jury. A subsequent trial also resulted in a hung jury. He was threatened by a gang member that the gang would “get him” if he testified again. The gang murdered him in 1995 to keep him from testifying. She said the ultimate pain a victim has to go through is to sit in a courtroom and to say nothing. It destroys a family. During the sentencing process, the victim’s family is not allowed to say anything while the defendant’s family can plead for leniency. She said she does not want to take the defendant’s rights away; however, she would also like to have some rights. She asked that an amendment be proposed to allow the victims’ families to speak during the sentencing process. She advised she is against the moratorium and is supportive of this bill.
Mrs. Foster asked whether families can give a recommendation in a non-death case. Mr. Brotherton advised that a recommendation can be given in a non-death case. Mr. Twist agreed. He said the statute creates a difference between a death and non-death case.
Chairman Voss announced that she had Request to Speak forms from the following people who are in favor of House Bill 2001:
Eric Edwards, representing Arizona Association of Chiefs of Police
John Blackburn, Jr., Arizona Criminal Justice Commission (ACJC)
Bill Plants, representing himself, Phoenix
John Hinz, representing himself, Phoenix, said the function of the jury is to find the facts. This legislation imposes an additional burden upon the jury.
Monsignor Edward Ryle, Director, Arizona Catholic Conference, testified that he is in support of the Sedillo amendment relating to changing the age for the death penalty. He observed that studies of brain development show the brain is not mature until the early 20’s, especially in terms of decision making and judgment. Most states exclude the death penalty for anyone under the age of 18. He hopes the Sedillo amendment will get serious consideration by Members. In addition, he said he is supportive of the bounce-back and the independent review amendments which will make the bill acceptable.
James Hamm, Middle Ground Prison Reform, testified in opposition to H.B. 2001. He referred to a handout on “Death Penalty Errors and Bias in Arizona, 1910 – Present (Attachment 8). He maintained that this Committee was given misleading information in prior testimony. He said answers in response to questions posed by Members were not fair and Members were given incorrect facts. He said he is completely opposed to the death penalty; however, if the death penalty is going to be used, it needs to be the fairest process it can be. He pointed out that the Capital Case Commission came up with a number of serious issues that need to be resolved, such as funding defense attorneys for indigent defendants.
(Tape 2, Side B)
Julie Hall, representing herself, Tucson, spoke in opposition to H.B. 2001. She advised she is a defense attorney, handling capital cases. She stated this issue is too complicated and too important to be considered within a few days, and agreed with previous testimony that a lot of misinformation has being given. She presented her thoughts on this issue:
· If independent review is taken away from the court, the bill will not be constitutional. The Brotherton proposed amendment is an important addition and needed in statute.
· Aggravating factors are not the only eligibility factors for the death penalty, and Ring does not address those factors.
· Concerns that a moratorium would lead to more legal challenges are unfounded.
· The lack of DNA evidence does not make a person guilty.
· Defense attorneys did not have input into the bill. The defense attorneys on the Commission were presented with the bill after it was drafted, and the vote was completely divided.
· Juries who are not opposed to the death penalty are much more prone to conviction.
· The bounce-back provision is not clear.
Mr. Camarot asked whether any defense attorneys voted in favor of this legislation. Ms. Hall clarified there was no defense input in the drafting of the bill. The Commission was told that a vote would be taken on the proposed bill and would not include anything beyond the proposal.
John Stookey, representing himself, Phoenix, testified in opposition to H.B. 2001. He advised that he was one of the co-counsels in the Ring case before the U.S. Supreme Court. He disclosed that the major provisions of the bill are not mandated by Ring. Ring does not mandate that the judge has no role in sentencing; it mandates that the jury does the fact-finding necessary for making the individual eligible for the death penalty. Ring does not mandate or authorize the bounce-back provision, nor does it prevent de novo independent review by the state Supreme Court. The bill makes the effective date retroactive and carries an emergency clause, neither of which is required by Ring. The only thing in this bill mandated by Ring is that aggravating circumstances have to be found by the jury. Also relevant is the fact that this legislation is making a fundamental change in the system from judge to jury sentencing. It takes away all checks and balances. This proposal makes a temporary fix to the existing system, and he wondered if the entire system needs to be reviewed. He professed that issues need to be looked at further.
Vice-Chairman Tully asked whether the U.S. Supreme Court will require jury sentencing in capital cases. Mr. Stookey answered Ring does not require that.
In response to Vice-Chairman Tully, Mr. Stookey said that he believes the defense community prefers that the jury do the fact finding and the sentencing, rather than the jury doing the fact- finding and the judge doing the sentencing. He advised that his choice of the two is that the jury do everything; however, he personally prefers the option that when a jury makes a death decision, the judge can make an independent review.
In reply to Vice-Chairman Tully about the bounce-back provision, Mr. Stookey opined that changing juries during different stages maximizes the chances of reaching an inappropriate conclusion.
Mr. Camarot asked for comment on statements made by proponents that it is imperative to implement this legislation as soon as possible. Mr. Stookey theorized that passage of this legislation will result in 15 or 20 years of litigation. He contended that the bill is fundamentally flawed and takes away protections that will be problematic. He said it makes sense to slow down and do it right.
Mr. Camarot asked whether the state has a death penalty on the books. Mr. Stookey replied that Arizona does not have a constitutional death penalty statute at the present time. Mr. Camarot queried whether a defendant has the right to demand sentencing take place without a delay. Mr. Stookey said those are appropriate motions to make and are issues to be resolved by the courts. Mr. Camarot asked whether that makes it incumbent on the state to get something passed. Mr. Stookey said his best advice is to go slow and think about fixing the fundamental flaws in this proposal, such as the bounce-back and the independent review issues.
Mr. Camarot asked about the possibility of removing from this legislation those cases of defendants who have previously been sentenced to death and have exhausted all their appeals, and addressing that issue at another time. Mr. Stookey commented that excluding those currently in the system would be an appropriate balance to think about.
To that point, Mr. Nelson queried what happens to those currently on death row. Mr. Stookey said those cases would remain with the courts’ rulings. Under that premise, the 30 individuals on direct review would get life in prison. Mr. Nelson asked how many would end up serving a life sentence. Mr. Stookey said it would depend on how the statute was written. He advised there is a legal question as to whether the Ring Decision affects cases that have passed direct review by the state Supreme Court. He noted that the U.S. Supreme Court did not address the issue of whether Ring should be applied retroactively to those people.
Mr. Camarot speculated there will be years of litigation on this issue before it is resolved. Mr. Stookey concurred. He believes there will be substantial litigation on the issue if this legislation passes as written.
Mr. Camarot queried whether the Supreme Court on review can overrule the death penalty finding of a sentencing jury and impose its own decision. Mr. Stookey explained that prior to Ring, the state Supreme Court under a de novo review could re-weigh the aggravators and mitigators, and come to a different conclusion than the trial judge. After Ring, he believes it would still be acceptable for the Supreme Court to re-weigh a case in which a death penalty had been given by the trial court and reduce it to life, but not the other way.
Mr. Pierce referred to the Attorney General’s statement that Ring impacts only death-row inmates who are on direct appeal. He asked Mr. Stookey if he agrees with that statement. Mr. Stookey said Ring does not involve anybody other than those on direct review; however, it does not resolve the issue of retroactivity.
Mr. Pierce raised the issue of racial bias (Attachment 10). He said there does not appear to be a great racial bias in Arizona based on statistics provided.
Eleanor Eisenberg, Executive Director, Arizona Civil Liberties Union (ACLU), testified against H.B. 2001. She said she does not see how this Committee can go forward with a bill that is flawed. She further stated that she does not see how this Committee can go forward without deciding whether the state should have the death penalty. If the people of Arizona are given the choice between the death penalty and life without parole, only 47 percent would be in favor of the death penalty. She submitted that abolishing the death penalty is the only way to avoid litigation. She claimed there is no justification for continuing the death penalty. She said she has heard no justification for maintaining the death penalty other than victims’ rights. She pointed out that nobody argues that the death penalty is a deterrent.
(Tape 3, Side A)
Ms. Eisenberg said one problem with the death penalty is that when mistakes are made, they do not get to be corrected. It is known that over 100 people have been exonerated, but it is not known how many people have been executed who should have been exonerated. She suggested that if the Legislature passes this legislation and if the death penalty is maintained, it will enable killing to take place.
Marty Lieberman, representing himself, Phoenix, expressed opposition to H.B. 2001. He said he does not believe in the death penalty. He referred to a comment made that any system has to tolerate error. He said he does not believe any death system should tolerate error. He stated concern about the lack of checks and balances in this bill, such as the removal of the independent review and the inability of the trial court to override the jury’s decision. He stressed that this invites more error. He observed that there was no consensus on many of the motions made by the Capital Case Commission. He opined that action on this legislation is rushing to judgment and that it will not be done right. This issue needs careful consideration.
Sharon Boryczewski, representing herself, Tucson, spoke in opposition to H.B. 2001. She related that on July 18, 1997, her daughter was murdered by two of her friends. She advised she has always been opposed to the death penalty. Her conviction was reaffirmed when, as a paralegal, she had to transcribe a sentencing tape in which the death penalty was handed down, and she heard the pain and anguish of the defendant’s family. She identified with the family and realized that she could never ask the state to impose the death penalty on her behalf and inflict the pain she was feeling on another family. She asked Members not to pass this legislation in her name or in her daughter’s name.
Chairman Voss announced that she had a Request to Speak form from the following person who is in opposition to House Bill 2001:
Ann Nichols, representing herself, Tucson
Sharon Robertson, representing herself, Cave Creek, testified against H.B. 2001. She related that although her son was murdered, she does not support the death penalty. She stated that killing the person responsible for her son’s death will not bring her closure. She asked that if the death penalty is reinstated, it not be done in a hurry. She said it is anguish to sit through a trial and know your son’s killer is still alive. No one can lose a child to violence and not feel vengeance; however, it would be wrong for her to kill and wrong to ask the state to do it for her. Another death would not bring her closure or relief.
Jennifer Bedier, representing herself, Tucson, spoke in opposition to H.B. 2001. She said she is an attorney representing capital cases. She depicted the bill as being unconstitutional. The provisions go beyond Ring. The Legislature needs to take time to evaluate the issues. It will take an enormous amount of money to re-impanel a jury because it would basically mean retrying the case. She stressed that there is no rush to do this today. Only three cases will be affected by this legislation. She pointed out the need to clarify the issue of racial disparity. She asked Members to oppose this proposal.
Casey Espinoza, representing himself, Phoenix, expressed opposition to H.B. 2001 and to the death penalty. She advised that her brother was murdered in 1994. This bill would reinstate the death penalty and create more victims. She maintained the bill is more of a revenge bill than a punishment bill. She related that her family has been changed forever because of her brother’s murder. She said her family would not want the pain they have felt inflicted on anyone else, and asked Members not to inflict that pain on anyone. She said the reason for imposing the death penalty is because the crime was cruel, heinous and depraved. She said that all murder is cruel, heinous and depraved, and it does not matter if it is the state or a stranger doing the killing. If the death penalty is reinstated, the state is committing cruel, heinous and depraved acts on people and on other families that will have to go through what her family has gone through.
Joseph Gutierrez, representing himself, Phoenix, testified against H.B. 2001. He said he is opposed to the death penalty. He said the death penalty does not stop violence, is grossly unfair and is unjustly applied racially, socially and geographically. It costs the state more than a life imprisonment sentence. The death sentence is a faulty system and is irreversible. He called on Legislators to bring an end to the death penalty because it is a barbaric, antiquated, biased and unfair form of punishment. He asked Members to bring healing, humility and humanity to this Special Session.
Chairman Voss announced that she had a Request to Speak form from the following person who is in opposition to House Bill 2001:
Richard Gierloff, representing himself, Phoenix
Alan Simpson, representing himself, Phoenix, expressed opposition to H.B. 2001. He advised that he was the attorney who defended Ray Krone, who was released from prison after ten years on death row. He cautioned Members to be careful in enacting this legislation. The entire aspect of whether to impose the death sentence is emotionally charged for a jury. They are being asked to re-live the trial. He said it is necessary to erase emotion from a jury to be able to make a fair determination. This legislation does not permit a judge to have the right to override a death verdict by a jury.
Mr. Tully asked Mr. Simpson whether he would rather have a judge or a jury impose the sentence. Mr. Simpson said he would rather have a jury make a recommendation. If the recommendation is death, the judge should make the ultimate determination of whether to adopt that recommendation or to impose a life sentence. He maintained that emotion distracts a jury and may sway jurors in their decision. The judge is in a better position to make a determination based on fact, or to be permitted to use that discretion.
Mr. Nelson disagreed with Mr. Simpson’s depiction of a jury that it is unable to arrive at an impartial decision because of emotion. He said emotion is there; however, his experience shows that a jury can recommend a death penalty regardless of the emotional issues involved.
Mr. Simpson raised the cost issue involved with this legislation for re-impaneling another jury as well as for defense preparation. He asked Members not to act in haste. He submitted that this bill has been prepared in haste without due consideration of all relevant facts.
Vice-Chairman Tully moved that H.B. 2001 do pass.
Chairman Voss announced that she had Request to Speak forms from the following people who are opposed to House Bill 2001:
Terry Bidenkap, representing himself, Chandler
Braclatte Williams, representing himself, Tucson
Louis Grannis, representing himself, Scottsdale
Margaret Grannis, representing herself, Scottsdale
Marghi Hagen, representing herself, Phoenix
Kyrsten Sinemz, representing herself, Phoenix
Margarita Silva, representing herself, Phoenix
William Tyler, representing himself, Tempe
Kevin Spidel, Field Organizer, Amnesty International
Jennifer Udon, representing herself, Phoenix
Sean Alexander, representing himself, Phoenix
Kevin Keryk, representing himself, Phoenix
Brent Barcena, representing himself, Phoenix
David Buhl, Member, Amnesty International
Albert Ching, representing himself, Tempe
Richard Olivie, representing himself, Tempe
Rasheedah Mullings, Member, Amnesty International
Erik Bidenkap, representing himself, Chandler
Donna Bidenkap, representing herself, Chandler
Tiffiney Smith, representing herself, Matteson, IL
Jessica Meyer, representing herself, Phoenix
Justin Biel, representing himself, Phoenix
Rachel Mishaga, representing herself, Tempe
Kristin Ploog, representing herself, Tempe
Evan Doheny, representing himself, Tempe
Sambo Dul, representing himself, Tempe
Jason Stranaglia, representing himself, Tempe
William Krist, representing himself, Phoenix
Alicia Olivie, representing herself, Tempe
Gary Marks, representing himself, Phoenix
Marana Nish, representing herself, Tempe
Patricia Mullings, representing herself, Tempe
Alison Brownell, representing herself, Tempe
Andre Olivie, representing himself, Tempe
Amelia Fearing, representing herself, Tempe
Jason Simonson, representing himself, Scottsdale
Scott Garvin, representing himself, Mesa
Terri Browning, representing herself, Phoenix
Shannon Murray, representing herself, Gilbert
Ryan Tamietti, representing himself, Tempe
Shanna Sandler, representing herself, Mesa
George Godas, representing himself, Tempe
Paul Mashler, representing himself, Tempe
Christopher High, representing himself, Chandler
Craig Jacobsen, representing himself, Gilbert
Robert Roberts, representing himself, Chandler
Diane Duffy, representing herself, Tempe
Sandra Bahr, representing herself, Phoenix
Bret Huggins, representing himself, Florence, testified in opposition to H.B. 2001. He said he does not agree with some of the comments made today. He refuted the statement that Arizona has no death penalty at the current time. He explained that the U.S. Supreme Court did not strike down Arizona’s death penalty; it struck down the procedure for imposing death. He said this legislation proposes to adopt a procedure that will re-sentence under a new procedure. The simple answer is to stay all first-degree murder cases for sentencing. If the Legislature chooses to adopt a death penalty and change the procedure for that death penalty to one that complies with the jury decision required by Ring, it can be applied if it is procedural. If Ring was a substantive decision, it cannot be applied retroactively, but can only be applied to new cases. The Supreme Court did not say whether Ring was substantive or procedural. He asked that the Legislature not rush to make changes at this time but take the time to do it right. He pointed out that passage of this proposal will result in an unfunded mandate to counties, and opined that endless legal battles will ensue about the constitutionality of the bill.
Mr. Brotherton moved that the Brotherton 26-line amendment dated 7/31/02 be adopted (Attachment 11).
Mr. Brotherton explained that the 26-line amendment strikes language prohibiting penalty recommendations by victims. In addition, it restores the law with regard to independent review.
Question was called for on the Brotherton 26-line
amendment (Attachment 11). Division was
called and by a hand vote of 6 to 4, the motion carried.
Mr. Brotherton moved that the Brotherton eight-line
amendment dated 7/31/02 be adopted (Attachment 12).
Mr. Brotherton explained that the eight-line amendment provides that a
jury will be made aware of the options available in sentencing if they decide
death is not appropriate.
Question was called for on the Brotherton
eight-line amendment (Attachment 12).
Division was called and by a hand vote of 4 ayes and 6 nays, the motion
failed.
Mr. Sedillo moved that the Sedillo 23-line
amendment dated 7/31/02 be adopted (Attachment 4).
Mr. Sedillo explained that the 23-line amendment relates to DNA
testing.
Question was called for on the Sedillo 23-line
amendment (Attachment 4). The motion
failed.
Mr. Sedillo moved that the Sedillo 11-line amendment
dated 7/31/02 be adopted (Attachment 5).
Mr. Sedillo explained that the 11-line amendment deals with the
execution of children.
Chairman Voss expressed concern about the amendment. She opined that it is probably
unconstitutional and would take a constitutional change to deal with the
commutation issue.
Question was called for on the Sedillo 11-line
amendment (Attachment 5). The motion
failed.
Mr. Sedillo moved that the Sedillo seven-line
amendment (no date) be adopted (Attachment 6).
Mr. Sedillo explained that the seven-line amendment removes the
bounce-back provision when juries are hung.
Question was called for on the Sedillo seven-line
amendment (Attachment 6). Division was
called and by a hand vote of 4 ayes and 6 nays, the motion failed.
Vice-Chairman
Tully moved that H.B. 2001 as amended do pass.
(Tape 3, Side B)
The motion carried by a roll call vote of 7-3-0-0
(Attachment 13).
Without objection, the meeting adjourned at 7:10 p.m.
___________________________________
Joanne
Bell, Committee Secretary
August 19, 2002
(Original minutes, attachments and
tapes on file in the Chief Clerk’s Office)
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COMMITTEE
ON JUDICIARY
18
July
31, 2002
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