An ambitious prosecutor seeking re-election, a governor trying to figure out what’s wrong with her state’s death penalty system, a victim’s family calling for a murderer to be executed, an attorney general seeking to defend her authority in the death penalty system, a death row inmate whose fate hangs in the balance — these elements are a familiar part of the story of capital punishment across the country. But they’re all now in stark relief in Arizona, where the political motives of an ambitious district attorney are fueling a dispute over the rules that determine who gets to decide when to issue a death sentence.
The mess in Arizona arose in the case of Aaron Gunches. Gunches, who was sentenced to death in 2002 for the murder of his girlfriend’s ex-husband, Ted Price, pleaded guilty to murder in the attempted shooting. He has been on death row since 2008.
The Gunches case has already had a lot of unexpected twists and turns, but now Maricopa County District Attorney Rachel Mitchell has added a new and disturbing twist.
She is defying law and logic by claiming authority she does not have to obtain a death sentence for Gunches. A local news report makes clear that under Arizona law, “it is solely the responsibility of the Attorney General to ask the Arizona Supreme Court for the warrant necessary to execute someone after all legal remedies have been exhausted.”
Nevertheless, on June 5, Republican Mitchell took the unprecedented step of filing a petition with the Arizona Supreme Court that she herself admitted was “a step aimed ultimately at obtaining an execution warrant for Aaron Brian Gunches.”
Mitchell’s political motives are clear. In 2022, she was elected with 52% of the vote after a closely contested race with Democrat Julie Gunnigle. This year, she faces a similarly close race for re-election.
The Gunches case offers her the chance to underline her tough stance in the fight against crime and to score points as a staunch advocate for victims’ rights.
Among the complications in this case is the fact that Gunches himself asked the state Supreme Court in November 2022 to allow his execution. Republican Mark Brnovichthe then Attorney General of Arizona, joined him in this request.
The court granted Gunches’ motion.
But after Brnovich lost his re-election bid, Gunches changed his mind. In January 2023, the new Attorney General, Democrat Kris Mayes, joined him in asking the state Supreme Court to overturn the execution order.
However, the court denied Mayes’ request and set an execution date. Then Governor Katie Hobbs intervened.
Despite the court’s action, Hobbs said her government would not carry out the execution. She argued that the execution warrant only “authorized” the execution, but did not require it to be carried out.
An article in the Arizona State Law Journal stated: “Governor Hobbs’ decision not to pursue the execution warrant raises the constitutional question of whether she was entitled to ignore the order or whether it required her to act.”
It stated: “Karen Price, the victim’s sister, and her attorneys … sought an administrative warrant (an order that compels a public official to perform a legally mandated duty that he is not free to perform) against Hobbs to compel her to execute Gunches. Price argued that the wording of the execution order did not allow for discretion and that Hobbs was obligated to enforce it.”
But “the Arizona Supreme Court sided with Governor Hobbs.”
As the legal journal states:
The court ruled that the execution warrant it issued “authorized” the governor to proceed with the execution of Mr. Gunches. However, that authorization did not have the status of an order. The order gave the governor the power to carry out the death penalty, but contained no binding provision requiring the governor to do so.
In addition, shortly after taking office, Hobbs announced a stay of executions in Arizona because she believed “a history of executions had raised serious questions about (the state’s) execution protocols.” She also launched an independent investigation into the death penalty, led by retired Judge David Duncan.
At the time, Governor Hobbs said, “Arizona has a history of poorly conducted executions that have raised serious concerns about the ADCRR’s execution protocols and lack of transparency. That is now changing under my administration… A comprehensive and independent investigation must be conducted to ensure that these problems are not repeated in future executions.”
Mitchell complained that the review was moving too slowly. “For nearly two years,” Mitchell said, “we have experienced one delay after another from the governor and the attorney general. The commissioner’s report was expected in late 2023 but never arrived. In a letter my office received three weeks ago, I was now informed that the report could be ready in early 2025.”
She then sided with the family of Gunches’ victim, saying, “For nearly 22 years, Ted Price’s family has waited for justice and closure. They are not prepared to wait any longer, and neither am I.”
Mitchell claims that “each district represents the state in criminal prosecutions in Arizona…I may also legitimately ask the Supreme Court for an execution warrant. The victims have asserted their right to a final decision and are asking this office to assist them in preserving their constitutional rights to a speedy and final resolution of this case.”
But even Mitchell knows that her actions have no legal basis. When she filed her motion, she acknowledged that it was “unusual for a district attorney to seek a death warrant.”
Unusual is a mild word for what Mitchell is attempting. It is unprecedented and clearly illegal.
Last week, Attorney General Mayes responded to Mitchell’s ploy. She asked the state Supreme Court to ignore Mitchell’s request. “The authority to seek an execution warrant … rests solely with the Attorney General,” she told the court.
She said Mitchell had gone “rogue” and reminded them that “there is only ever one attorney general – and the voters decided who that is 18 months ago.”
She accused Mitchell of “delivering a cynical performance to appear tough in the hotly contested re-election primaries” and of viewing this political imperative as “more important … than upholding the law.”
“The conduct of … District Attorney Mitchell in the Gunches case,” Mayes noted, “not only disregards the legal process, but also endangers the viability of our legal system.” Allowing any district attorney to seek execution warrants, Mayes said, would cause “chaos” in Arizona’s already troubled death penalty system.
What is happening in Arizona shows the lengths some death penalty supporters will go to keep the death machine running. And all of us, no matter what we think of the death penalty, would be wise to see the state Supreme Court firmly reject Maricopa County’s dangerous attempt to impose the death penalty.
