The spending proposal that passed the Senate on May 16 allows the Arizona Attorney General’s Office to tap into a state fund for indigent defendants to pay for prosecuting certain death-penalty proceedings.
Defense attorneys say the move would put more pressure on counties to meet mandates to adequately fund capital defense and could lead to violations of the Sixth Amendment.
Under the proposal, the attorney general would get $500,000 in fiscal year 2013-14 to use on capital post-conviction relief proceedings, and would have to submit a plan for turning over the extensive and costly proceedings to the Maricopa County Attorney’s Office. The proposal, along with the overall budget, still would have to be approved by the House and signed by the governor to take effect.
The earmark would come from the state aid to indigent defense fund, a relatively small pool of money doled out to counties, but not a dime of which has landed in a county coffer in two years since the money was diverted to the Department of Public Safety one year and not appropriated the next. The Legislature created the fund in 1999, along with funds for prosecutors and courts to handle an explosion in caseloads and keep cases within constitutionally required time limits.
Gov. Jan Brewer’s spending plan calls for eliminating the fund and diverting the money permanently to DPS. That would make it the second indigent defense fund to disappear in two years. The Legislature also eliminated the State Capital Post Conviction Public Defender Office in fiscal year 2013, which had a budget of $849,000 the previous year.
Defense attorney Michael Terribile, the indigent defense chairman with the Arizona Attorneys for Criminal Justice, an advocacy group for criminal defense issues, said taking money from indigent defense funds could create problems with due process and right to counsel.
“The right to counsel means the right to effective assistance of counsel and when they start cutting back on the funds, you cut back on the ability to be effective,” Terribile said. “No one can deny that.”
Not a priority
The Arizona Criminal Justice Commission, which is in charge of distributing the money, is lobbying to get
$1.8 million appropriated to the fund for fiscal year 2014. But the Senate proposal accounted only for the earmark to the Attorney General’s Office, and lobbyists for county interests have not made the fund a priority as they grapple with restoring much more monumental cuts to counties in recent years.
“There is enough to give the $500,000 to the AG for capital post-conviction relief and still support the counties and that is what we are proposing to do,” said George Diaz, the Criminal Justice Commission’s spokesman.
David Euchner, president-elect of the commission and a deputy Pima County public defender, said funding indigent defense is mandated, so the costs will simply shift to the counties.
“In the end, there will be funding or there will be a Sixth Amendment issue,” Euchner said.
Stephanie Grisham, a spokeswoman for the Attorney General’s Office, said capital post-conviction relief proceedings, which are also known as Rule 32 proceedings, cost the office a significant amount of money and staff time. And while the attorney general asked for the money, the office did not ask that it come from indigent defense.
A Rule 32 proceeding is the defendant’s chance to bring up issues that weren’t part of the trial, specifically whether defense counsel was ineffective, if there is newly found evidence or substantial changes in the law. The proceeding is more or less a re-examination of the sentencing phase of a capital case. Most of them have to do with whether the defense counsel was ineffective.
Death penalty load
Judge Kent Cattani of the Arizona Court of Appeals, who was in charge of criminal appeals with Attorney General’s Office before he took the bench last month, spearheaded the proposal to turn over the brunt of the responsibilities of Rule 32 to the Maricopa County Attorney’s Office.
The Attorney General’s Office handles death penalty appeals to the Arizona Supreme Court and federal court. Cattani said there is no legal requirement for the attorney general to handle capital Rule 32 proceedings.
“It’s primarily a resource issue,” Cattani said. “When I was over there we simply did not have the resources given the kind of influx of additional cases, and they have become more complex.”
Maricopa County is one of the leading counties in the country in seeking the death penalty and putting people on death row, according to the Death Penalty Information Center. A snapshot of pending cases in September 2012 showed Maricopa County had 63 pending cases while there were 20 pending throughout the rest of the state.
Cattani said the Attorney General’s Office began handling Rule 32 proceedings decades ago based on the legal landscape of the death penalty at the time. But recent changes in the law have made it more advantageous for the county attorney to prosecute them.
Cattani said he’s unfamiliar with the decision to use the indigent defense funds, but he doesn’t think the attorney general is trying to limit defense funds because it wouldn’t be in the state’s interest to do it.
“The Arizona Supreme Court has made clear that adequate resources must be made available for investigation and for expert witnesses for the defense and I’m not aware of any instances in recent years where that mandate has not been followed,” Cattani said.
Cattani was referring to a 2001 Arizona Supreme Court ruling in which the court ordered a new sentencing for Philip Bocharski, who stabbed an elderly woman to death.
In that unanimous ruling, then-Justice Thomas Zlaket wrote: “So long as the law permits capital sentencing, Arizona’s justice system must provide adequate resources to enable indigents to defend themselves in a reasonable way.”
Backfilling lost dollars
Kristin Cipolla, a lobbyist with the County Supervisors Association, said she was surprised to see the appropriation to the Attorney General’s Office, but restoring the fund for the counties is not one of the association’s top legislative priorities.
Cipolla said counties have become accustomed to backfilling lost dollars.
Cari Gerchick, a spokeswoman for Maricopa County Board of Supervisors, said the board is obligated to fund indigent defense even if the state is taking away money for that.
She said the county almost yearly has to provide extra funds to indigent defense to cover overspending, and on May 22 approved a $7 million expenditure to cover a shortfall for fiscal year 2012-2013.
“Nobody likes to give up a defense funding, but if it has to be funded, we’re going to fund it anyway,” Gerchick said.