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As death-penalty cases stack up, Supreme Court searches for help

As the death-penalty caseload piles up for the Arizona Supreme Court, the justices are looking into using Court of Appeals judges to help get through the cases. Ann Scott Timmer, chief judge of the Arizona Court of Appeals Division One, however, says the court  has its own bulging workload to deal with. (Photo by Ryan Cook/RJ Cook Photography)

As the death-penalty caseload piles up for the Arizona Supreme Court, the justices are looking into using Court of Appeals judges to help get through the cases. Ann Scott Timmer, chief judge of the Arizona Court of Appeals Division One, however, says the court has its own bulging workload to deal with. (Photo by Ryan Cook/RJ Cook Photography)

On Oct. 15, a Maricopa County jury sentenced to death Fabio Gomez, a former minor-league player in the Chicago Cubs organization, for the bludgeoning slaying of a Chandler woman in 1999.

Because he got the ultimate penalty, his case went directly to the Arizona Supreme Court, where capital cases are piling up with no plan to whittle down the caseload anytime soon.

The five-member court can rule comfortably at a pace of 10 to 12 death-penalty cases a year. Most of their decisions are to uphold the death sentences.

But now there are 27 capital cases, a number that has grown from 17 in 2008, and even more cases are reaching the appeal phase.

Holding up the flow of cases are the time-consuming procedure of gathering transcripts and an increasing number of extensions granted to attorneys to file their briefs.

In Gomez’s case, records show that transcripts are trickling in to the Supreme Court from the various court reporters who worked on the month-long trial and many court proceedings dating back to June 2006.

Because all of the pending cases are in a preparatory stage and are not ready to be heard, the Supreme Court does not yet see the growing caseload as a critical issue.

But that could change abruptly if a significant number of them simultaneously become ready.

“When these all hit the court, they may just trickle in and not be a problem,” said retired Supreme Court Justice Michael Ryan, who chairs the court’s Capital Case Oversight Committee. “My feeling right now is, it is probably going to end up being somewhere between a fair trickle and a tsunami, and it’s probably going to be the former rather than the latter.”

If it turns out to be a tsunami of capital cases at the high court, the only plan so far is to enlist judges from the Arizona Court of Appeals, but the intermediary court has its own bulging workload.

“We’ve had to say, ‘Don’t count on us,’” said Judge Ann Scott Timmer, chief judge of the Arizona Court of Appeals Division One.

Arizona’s Constitution allows for lower level judges to sit on higher courts, and Timmer and her colleagues on the appeals court have sat on Supreme Court cases when justices have had conflicts.

“There’s no legal impediment I know of that prevents a Court of Appeals judge from sitting up there,” Timmer said.

Timmer said the difference with the proposal to use them exclusively for death-penalty cases is that they would be responsible for writing opinions, which require months of painstaking reviews of records.

The Court of Appeals couldn’t spare that much time. Unlike the Supreme Court, it has to take nearly every case filed with it and it is bound by law to put priority on juvenile, parental severance and unemployment compensation appeals, Timmer said.

If it would help, she said, she might be able to spare judges to do some of the Supreme Court’s non-death-penalty work.

Ryan said the only alternative so far is to acknowledge that many cases will be delayed, even though he added that avoiding delay at the appellate level is just as important as at the trial level.

If the Supreme Court returns a case to trial court, then the delay has an effect on the memories of witnesses, evidence becomes stale and witnesses can disappear or become difficult to track down, Ryan said.

On the other hand, the Supreme Court’s rushing through a death-penalty case can result in overlooking issues, missing nuances or not connecting a fact to a significant issue, Ryan said.

The growing caseload wasn’t unexpected.

The Arizona Supreme Court was instrumental in reducing the Maricopa County Superior Court’s logjam of cases, which was deemed a crisis.

The problem started with a 2002 U.S. Supreme Court ruling in Ring v. Arizona, which forced the re-sentencing of 14 death-row inmates, most of them Maricopa County cases. Aggravating the crisis was a shortage of qualified defense attorneys and, in 2006, a 40 percent spike in capital-case filings in Maricopa County Superior Court.

The Supreme Court formed the Capital Case Oversight Committee in 2007, which offered a series of recommendations, including a strict adherence to the speedy trial rules, to whittle down the caseload.

In just three years, the statewide number of pending death-penalty cases at the trial court level went from 133 to 79. Most of those cases were in Maricopa County.

The ripple effect of the newfound efficiency at the trial-court level has begun to hit the Supreme Court, Ryan said.

The number of pending cases in the high court went from 17 in 2008 to 23 in 2009 to 27 today.

And none of the pending cases has yet been assigned to a justice to work on.

Ryan said justices don’t get a case until after the vast record of transcripts has been assembled and attorneys for the defense and state have filed their briefs.

The holdup for the court has been long delays. The gathering of transcripts, which requires each court reporter on the case to transcribe all the court proceedings, can take a long time. Furthermore, there has been an increase in the number of requests by both the state and defense to extend time limits for filing briefs, Ryan said.

It is not unusual for the defense to ask for as many as four or five extensions now, compared with asking for two or three 10 years ago.

Chuck Krull, who supervises the Capital Appeals Division of the Maricopa County Office of the Public Defender, said a smaller death-penalty case produces from 5,000 to 6,000 pages of transcripts, and an attorney has to examine each page.

Ryan said cases are taking a year to 18 months before they are ready for the justices.

“Once it’s ready, the opinions come up pretty quickly,” Ryan said.

Death sentences in Arizona by Year

Each case automatically is appealed to the Arizona Supreme Court.

2004 – 8
2005 – 9
2006 – 16
2007 – 8
2008 – 9
2009 – 15
2010 – 10

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