Robert Comer (inset) is scheduled to become the first inmate executed in Arizona since 2000. He has written letters (above) to prosecutors and judges for years urging them to carry out his 1988 death sentence. A warrant for his execution (right) was issued in April.

In 2000, Mike Kimerer, a criminal defense attorney and life-long death penalty opponent, received an interesting job opportunity: Help Robert Comer die.
The offer to represent Comer came from U.S. District Court Judge Roslyn Silver. She was given the task of finding if Comer was deranged or if he was capable enough to fire his attorneys, end his appeals process and let the state carry out his death sentence.
“I thought about it and I did not accept right away,” said Kimerer, who once won a reversal of a capital sentence by claiming defendant Scott Falater was sleepwalking when he stabbed his wife to death. “Personally I’m opposed to the death penalty. But at the same time I believe a person has a right to choose whatever they want to do, and if he was competent he certainly had the right to make that decision.”
Robert “Gypsy” Comer is scary. His face has tattooed teardrops, and his chest bears a swastika. Prison officials consider him the state’s “most dangerous inmate,” and a local news station once called him “Arizona’s Hannibal Lecter.” He has served time in several of California’s most violent prisons, acting as an enforcer for a gang.
But he is not crazy, Kimerer said. “He certainly showed all signs of competency that he had thought this through and was very articulate on why he wanted to waive his appeal and why he wanted to be executed.”
It’s a notion that was not entirely shared by federal habeas attorney Julie Hall, who represented Comer in Silver’s court, and later, in the 9th Circuit Court of Appeals. She argues his decision is not voluntary because of the years he’s spent in isolated prison units that officials say are needed to house the most volatile of inmates.
“If you compare dying to living in super-max (super-maximum security, often referred to as SMU or SHU units) for the rest of your life, you could consider this an intelligent decision,” said Hall, a private capital defense attorney who also consults for the Arizona Capital Representation Project. “But I never felt it was voluntary.”
Comer has spent nearly 20 years in SMU I and/or II at the state prison in Florence and only recently was granted his wish to die by lethal injection. The long time frame for the condemned is not unusual at all, say prosecutors; in fact, it’s perfectly average.
What takes so long?
Comer’s long trek through the state and federal court system began on the night of Feb. 3, 1987, at the Burnt Coral Campground near Apache Lake. After dinner, Comer quietly told his girlfriend he was going to murder their guest, Larry Pritchard.
“They were around a campfire, and he came up behind him and just shot the guy in the head,” said Maricopa County Superior Court Judge Ronald Reinstein, recalling Comer’s trial. “This was just an innocent camper.”
Filings by prosecutors presented Pritchard, a large disabled man, as “friendly” and “harmless.” He relied entirely on Social Security for income, and stories from his days working different law enforcement-related jobs for self-validation and comfort.
But he had little money, and Comer, a battle-tested former inmate of California’s notorious Folsom Prison, was penniless and low on gasoline after an ill-planned, multi-state journey with Juneva Willis and her two children.
More victims were needed, and he found them. He remembered a young couple he encountered at another site. They were soon taken by Comer, armed with his .38-caliber revolver, and Willis, who toted a rifle.
Comer repeatedly raped the young woman. She later escaped with Willis’ tacit approval while Comer was distracted. She spent the day and night running before reaching a highway. Her feet were completely “denuded” of skin, Reinstein and court documents stated.
The trial in Maricopa County
Though capital trial and sentencing procedures changed in light of the U.S. Supreme Court decision in Ring v. Arizona, by today’s 35-month standard (a figure provided by the County Attorney’s Office) Comer’s 13-month offense-to-sentencing span could be considered somewhat swift.
He didn’t bother attending his week-long trial, but his April 11, 1988, sentencing was another story. His presence was legally required, so Comer created a 10-inch shank, barricaded himself in his jail cell and waited.
It would take numerous guards and a high-pressure fire hose to remove Comer from his cell, and he arrived at Reinstein’s courtroom restrained to a wheelchair, naked except for a blanket thrown over his lap.
“I know you don’t want to be here today, is that right?” asked Reinstein, looking at the battered and thoroughly exhausted prisoner.
“We made it though,” came the quiet reply, “with a little help from my friends.”
Comer received maximum consecutive terms totaling 339 years for various charges stemming from the robbery, kidnapping and rape.
And there would be no mercy on the first-degree murder judgment: Comer became the first man Reinstein would order to be executed.
“Every sentence, you want to make the right decision, but this was a very heinous crime,” Reinstein said. “It wasn’t just the murder; there were also the other things to be considered. And with his criminal history there wasn’t a whole lot of mitigation that was presented. The aggravating circumstances were just overwhelming.”
Direct appeal
Within two days lawyers filed a mandatory direct appeal to the Arizona Supreme Court. The 55-page brief filed in January 1989 alleged 10 separate claims of trial court error, prosecutorial misconduct and a declaration that Arizona’s death penalty is unconstitutional.
One important claim was that theft, and not armed robbery, was the appropriate offense for Comer’s rummaging through Pritchard’s pockets and camp. An armed robbery charge requires the coexistence of force and the taking of property, and Pritchard was already dead.
The distinction is important. Under Arizona’s felony murder rules, killings made in the commission of certain felonies — including armed robbery but excluding theft — can result in murder charges and not lesser offenses, such as reckless manslaughter or negligent homicide.
An unraveling of the armed robbery charge would have jeopardized Comer’s death sentence by forcing prosecutors to take on the more difficult task of clearly proving premeditation to achieve a first-degree murder conviction.
The claim cited case law, but the Arizona Supreme Court was not moved, writing “We are not saying that a defendant immunizes himself from a robbery conviction by killing the victim. What we are saying is that the robbery statute requires the coexistence of an intent to commit robbery with the use of force.”
Ultimately, all assertions raised in the direct appeal were rejected by the high court in July 1990, including claims that prosecutor K.C. Skull erred in closing arguments by labeling Comer a “monster,” “filth” and the “reincarnation of the devil on earth.”
Post-conviction petition
Martin Lieberman, a veteran criminal defense attorney and director of the State Capital Post-conviction Public Defender’s Office, says a “simplified” difference can be drawn between a convicted murderer’s direct appeal and the post-conviction petition process.
“I tell people that the direct appeal is to determine if the judge did anything wrong, and the post-conviction proceedings is to determine if the lawyer did anything wrong, or if there is any new evidence or a change in the law since the first trial,” he said.
As such, ineffective assistance of counsel is a common consideration at this stage of a capital case, Lieberman said.
The direct appeal upheld Comer’s death sentence delivered by Reinstein, and the post-conviction petition would also prove fruitless. All of its claims were rejected by Reinstein in November 1992, and 10 months later the Arizona Supreme Court declined to review the matter.
On April 4, 1994, the United States Supreme Court also refused to accept Comer’s case and months later a warrant for his execution would be issued. Within two weeks his habeas corpus petition was filed with the U.S. District Court in Phoenix.
Habeas appeal
Lieberman distinguishes the habeas process as a way to review issues properly raised and denied at the state level that affect a prisoner’s federal constitutional rights.
This step in capital conviction appeals often relies on possible violations of the Fifth Amendment (right to due process) and Sixth Amendment (right to fair speedy trial, assistance of counsel) of the U.S. Bill of Rights, he said, though other rights might be involved.
And on average, the federal appeals process lasts twice as long as the six- to seven-year span typically spent on the state level, reports Kent Cattani, chief counsel of the capital litigation section of the Arizona Attorney General’s Office.
The delay has its casualties, Cattani testified before the United States Senate Committee on the Judiciary in 2005, primarily interference with states’ rights and an erosion of public confidence in the criminal justice system.
“Having chosen to have the death penalty, the people of Arizona expect that the punishment will be administered fairly and that it will, in fact, be carried out when it is imposed,” Cattani testified. “The reality has been a system bogged down by extraordinary delay, primarily in the federal courts.”
Comer would spend the next 13 years — much of the time against his wishes — navigating in and out of the federal district court and the 9th Circuit Court of Appeals.
Once in federal court, Comer was assigned Federal Public Defender John Hannah, now a Maricopa County Superior Court judge, and Peter Eckerstrom, who is now a Division II Court of Appeals judge in Tucson, as counsel. The pair would later be replaced by attorneys Julie Hall and Denise Young.
Their petition, filed in entirety in March 1995, included multiple alleged violations of Comer’s constitutional rights by the Arizona trial and appellate courts. Many are old arguments and, in 1996, Silver found seven of Comer’s habeas claims to be procedurally invalid, including that his rights were violated when he was brought into court nearly naked and semi-conscious.
A follow-up order issued in November 1997 by Silver addressed the merits of 10 other claims such as inadequate investigation and presentation of mitigating circumstances that could possibly have spared Comer a death sentence.
Habeas counsel argued the trial court defense failed to sufficiently present Comer’s mental condition and alleged intoxication at the time of Pritchard’s murder, his previous history of drug and alcohol abuse; his alleged torture at Folsom Prison, and his exposure to “difficult family situations and traumas in his life.”
9th Circuit Court of Appeals
The first attempt to spare his life on the federal stage failed, and two months shy of the 10-year anniversary of his original death sentence an appeal was filed with the 9th Circuit Court of Appeals on his behalf.
But, according to court documents, by that time Comer had decided on a new legal strategy with a new objective.
He began a campaign of writing inflammatory letters to prosecutors and judges blasting his habeas lawyers as anti-death penalty fanatics conspiring to prolonging his life to advance their agenda.
He claimed to have never authorized his habeas petition and asked to get “his merry feet on their way,” offering “free tickets to the show” in exchange for a death warrant. And he said he is not, as his counsel alleged, damaged goods from prison life.
In response, the state joined Comer and filed motions to drop the appeal, claiming that without Comer’s consent habeas counsel has no right to represent him, and the appeals court has no jurisdiction to hear the matter. And judging by his letters, according to the state’s argument, Comer is clearly competent.
Comer’s writings and the filings did not have the intended effect on the 9th Circuit. Rather than illustrating competence or being “colorful” as the state suggests, the writings, which include strong anti-Semitic language and pledges of hate, instead “demonstrate the need for a hearing,” judges said.
“We have grave concerns a mentally disabled man may be seeking to end his life,” wrote Judge Warren Ferguson, in a June 6, 2000 opinion ordering Silver to determine Comer’s contested competence to waive his appeals, and if “conditions of confinement have rendered those decisions involuntary.”
Soon after, Comer wrote Assistant Attorney General Jon Anderson, stating he was “stunned by the lies spun by these anti-death penalty people, judges included,” and that his confinement in California or on Arizona’s death row was a “non-factor” regarding his competence.
In fact, Comer claimed he never was on “death row” until the Department of Corrections transferred Arizona’s condemned inmates to SMU II, the prison’s most secure and isolated unit, where he was serving his time.
With very few exceptions, the “row,” Comer detailed, is occupied by “sorry-ass monks” and “sorry-ass panty wastes.” And given he was provided with a “bunk, blanket and three squares a day” and is not mistreated by staff, Comer appeared to find his surroundings acceptable.
“I do not blame ADOC for anything,” he said. “Matter of fact, give me one chance and somebody will get hurt by me. ADOC knows that…you want hell-in-a-cell, you should have seen what was going on at Folsom…”
The letter to Anderson, who represented the state in its attempt to dismiss the habeas appeal to the 9th Circuit, spurred Comer’s counsel, including Hall, to try to disqualify the Attorney General’s Office from the case for interfering with attorney-client privileges.
The claim went nowhere, and the court also was made aware of a “palpable strain” between Comer and his special counsel Kimerer and co-counsel Heidi Gieszl, citing their opposition to capital punishment and Comer’s “general mistrust of attorneys.”
Back to federal district
The task of determining Comer’s competence was soon underway. Citing the state’s concern of the “extreme security risk” of transporting Comer, evaluations were ordered to occur in Florence.
Ultimately, Dr. Sally Johnson, a chief psychiatrist with the Federal Correctional Complex in Butler, N.C., is given the job. Her resume includes evaluations of Ted Kaczynski, known as the Unabomber, and John Hinckley Jr., who attempted to assassinate President Reagan.
Johnson’s evaluation would be extensive, including the possibility of Comer’s diet affecting his mental capacity. But the prisoner was found competent in a September 2001 report and Comer’s attorneys were granted the opportunity to provide their own evaluation.
Comer was evaluated by Dr. Terry Kupers, a former expert witness in a 1981 landmark case that found conditions in super-maximum housing units in California’s Soledad, Folsom and Deuel Vocational Institute prison facilities “seriously debilitated the physical and psychological well-being of inmates,” “engendered violence” and were “inconsistent with notions of human decency.”
The ruling was later partially reversed, but the conditions found at the locations — each of which housed Comer, then convicted of rape, during his five-year stint in California prisons — were “abhorrent.”
Mentioned in court documents are rotting garbage, human waste, active infestations of rats and cockroaches, but most disturbing to some inmates reportedly was the “unceasing racket” of blaring televisions, radios, shouting prisoners and clanging cell doors.
Kupers also declared Comer suffered a severe depressive episode after the May 1999 execution of Robert Vickers, who was described as Comer’s close friend in Florence’s SMU II.
In March 2002, the new doctor finds Comer has a variety of mental maladies: depression; Segregated or Supermax Housing Unit Syndrome, and post-traumatic stress syndrome — the same assessment often granted to soldiers returning home from battlefields. SMU syndrome, the district court opinion states, is identified by some mental health experts as a mish-mash of woes brought on by depleted social interaction and sensory input over long periods of time. But other experts do not recognize the disorder, and Silver said Kuper’s evaluation and testimony were self-contradicting.
In 2002, after touring Florence, reviewing Comer’s evaluations, his housing, and hearing his testimony that he understands continuing his habeas appeal could result in a new sentencing and possibly a new trial with a new verdict, Silver borrows from Shakespeare’s Hamlet and writes the following:
“These realities have led the Court to anguish over its decision and ultimately over the question of whether any healthy person, choosing between being and not being, could ever freely choose the terrifying ignorance of what may follow death, over enduring the ordeal of life.”
She finds Comer fit to die. And though Comer tells his counsel after the ruling in no uncertain terms “YOU’RE FIRED,” Silver’s decision is immediately appealed.
Back to the 9th Circuit
The case is in suspension for years. Attorneys, both Hall and special counsel Kimerer, attribute the long wait to considerations regarding the death penalty by the U.S. Supreme Court.
In September 2006 — almost 19 years after Robert Comer killed Pritchard and sexually assaulted a woman — a three-judge panel agrees with Silver’s assessment that Comer competently and voluntarily surrendered his right to appeal.
But Comer’s battered appearance and presence in restraints at his 1988 sentencing “shocks the conscience” and he is entitled to a new sentencing, wrote a judge in a 2-1 opinion.
Kimerer described the ruling as “very interesting,” and said it was without precedent. But he added it wasn’t entirely surprising given the line of questioning delivered by the judges in court.
“They sort of telegraphed their sort of thinking by the questions they were asking during the argument,” he recalled. “They came up in their first opinion, ‘Could you still go ahead — even though you’re competent, even though you want to waive your appeal, and even though you want to go ahead and be executed — could you do that if the sentence was invalid?’
“Their reasoning, in that case basically, was you can’t,” said Kimerer, adding court observers found it to be an “unusual analysis,” and it was not welcome news for all.
“This was a guy that was convicted of first degree murder, rape and whatnot,” said Reinstein, who will soon retire from the Maricopa County Superior Court. “He was incarcerated. He just tried to kill anybody that tried to get him out of his cell. There was no way he wasn’t going to be handcuffed. I don’t know what those two judges on the 9th Circuit were thinking, that they don’t bring people in shackles.”
Hall supported the decision, expressing Comer’s sentencing as “outrageous and like nothing we’ve ever seen, at least in modern times.” And the prospect of his execution does nothing to advance the interests of justice, she said.
“Robert takes responsibility for this murder and feels tremendous remorse,” she said. “People need to understand that a lot of what Robert is, is the product of his confinement. There’s a lesson to be learned here.”
But Reinstein said it contradicts the reality of sentencing procedures, where judges simply convey what they have already considered at length.
“All you’re doing is reading,” he said. “There is nothing to change the judge’s mind on. The mind is already made up. All the evidence is in.”
The decision was soon de-published, and a 15-member panel of the 9th Circuit convened and voted 14-1 in March 2007 to reverse the three-judge panel and restore the sentence of death.
Kimerer, who never before his interactions with Comer met a death row prisoner choosing execution, summed up the new opinion:
“There’s nothing wrong with the conviction; the conviction stands; he waived his right; he waived the right to an attorney; he’s competent, and no one disputes that, not even the three judge panel,” he said. “If he wants to go ahead and say kill me, he has the right to do that.”
Comer considers his upcoming death a “victory,” but Kimerer said his duty, which he accepted with reservations, has provided a learning experience.
“One of the ironies of this whole situation is that this case probably dragged out longer than it would have if he had just let the appeals court run its course,” he said.
The execution, the first to occur in Arizona since Nov. 8, 2000, is scheduled for May 22. It was set by the Arizona Supreme Court in mid-April.
Two appeals have since been filed without Comer’s approval. Jennifer Bedier, a close confidant of Hall with the Arizona Capital Representation Project, has asked the Arizona Supreme Court to declare Comer’s sentencing illegal and to examine if the lethal injection process is constitutional because it subjects prisoners to “unnecessary risk of excruciating pain.”
The U.S. Supreme Court has also been petitioned for a writ of certiorari.
Meanwhile, prison officials are preparing for Comer’s first and last walk into the death chamber at Florence. Department of Corrections Director Dora Schriro and Attorney General Terry Goddard are scheduled to attend. Department spokeswoman Katie Decker, said Comer’s victims will be present, but will remain unidentified to comply with department policy.