Court won’t order execution of Gunches

The Arizona Supreme Court declined to order Gov. Katie Hobbs and the Arizona Department of Corrections, Rehabilitation and Reentry to execute death row inmate Aaron Gunches and ruled the warrant issued by the court only “authorizes” the state to go forward with an execution.

What started as one man’s wish for his own execution slowly swirled into a loaded political microcosm, pulling top state officials, multiple Corrections administrations and justice groups into its orbit.

The case cracked open execution protocols and operations at the state Department of Corrections. And the ruling now allows Hobbs’ ordered review of the death penalty to go forward unfettered.

Gunches initially filed a warrant for execution for himself and was joined by former Attorney General Mark Brnovich. But Gunches later rescinded his bid and current Attorney General Kris Mayes withdrew the state’s warrant as well, both citing a review of the death penalty ordered by Hobbs.

But the Arizona Supreme Court raised the question whether, under state law, it would have any choice but to see a warrant of execution through.

The initial case expectedly saw filings from Gunches and Mayes. Justices also received amicus curiae briefs from Maricopa County Attorney Rachel Mitchell, who pushed for Gunches’ execution, and from Arizona Attorneys for Criminal Justice, Federal Public Defender’s Office, the ACLU and ACLU Arizona, who opposed it.

The Arizona Supreme Court decided, because Gunches had exhausted his appeals, it had no choice but to proceed with a warrant of execution, which it issued on March 2.

But after Hobbs said officials would not be acting on the warrant of execution, Mitchell and the sister of the victim, Karen Price, filed seeking a writ of mandamus for Gunches’ sentence to be carried out.

Senate President Warren Petersen, R-Gilbert, and House Speaker Ben Toma, R-Peoria, filed amicus curiae in support of the victim and Mitchell. And ACLU Arizona, Arizona Attorneys for Criminal Justice and Phillips Black Law Firm, which is a national firm involved in death penalty cases, filed briefs in opposition.

In response, Hobbs argued the warrant only “authorized” the state to go forward, it did not mandate it.

And Arizona Department of Corrections, Rehabilitation and Reentry Director Ryan Thornell attached a declaration asserting the department was not ready to carry out an execution anyway.

Thornell said he had “not been able to locate standard operating procedures for items outlined in the protocol, contracts, or other written information about what the prior administration did.”

And the ADCRR current supply of the execution drug Pentobarbital requires quality and efficacy testing, and Thornell has yet to locate the pharmacist who supplied the department with lethal injection drugs.

He also points out that the execution team is contracted from out of state and “despite attempts, no IV team has yet been identified as available” to execute Gunches on April 6.

But Colleen Clase, attorney for the victim, attached an affidavit from former deputy director of ADCRR Frank Strada in her response to a flurry of amicus curiae briefs.

Strada claims he kept folders, checklists and witness lists stored in his office. He said the trainings scheduled for execution teams should be in Microsoft Outlook and the stash of Pentobarbital and supporting documentation was stored in the Arizona State Prison Complex in Florence’s “death house.”

Strada said all the documentation and drugs he knew of were still on the premises when he left the office in January 2023.

The court declined to rule on any of the inner workings of the department. But the justices did agree that the warrant was merely an authorization.

Dale Baich, a law professor at Arizona State University and former federal public defender, said the main takeaway from the flurry of filings and amicus briefs has been the admitted inability for the department to conduct a constitutionally aligned execution.

“What got lost as this matter escalated was that the governor definitively said the Department of Corrections is not prepared to go forward with executions,” Baich said. “These problems are complex, nuanced, and have been festering since 2010.”

The review of Arizona’s death penalty procedures remains ongoing, with retired federal Judge David Duncan working as the commissioner.

There has been no set timeline on Hobbs’ review, but Gunches has made it clear he still wants to be executed at some point.

In a hearing March 23, the Board of Executive Clemency accepted Gunches’ waiver of a hearing and “any form of clemency.”

Gunches wrote to Brnovich for years asking for his sentence to be carried out, and in more recent filings, he requested the court move him to Texas, “where inmates can still get their sentences carried out.”

But Gunches also made it clear when he rescinded his initial bid for his execution that he did not want to be party to a botched execution.

He referenced Murray Hooper’s execution, which Gunches said “amounted to torture.”

Kat Jutras, executive director of Death Penalty Alternatives for Arizona, said the ability of the state to carry out an execution in line with the law has been a longstanding contention.

“Those are my concerns and those are the same concerns Aaron has, regardless of how he personally feels about executions,” Jutras said.

She said Gunches’ case has given advocates some hope for a more transparent and just administration in corrections, particularly citing the declaration from Thornell, the Corrections director.

“The issue isn’t solely based in execution protocol, but how the department functions,” Jutras said.

“The willingness of the department to be transparent and public with information is going to be a huge change that a lot of us aren’t used to and have been demanding and hoping and begging for a really long time.”