County Attorney Stands Firm against Pressure to Plea-Bargain Death-Penalty Cases

Thomas Ordered to Attend Hearing, Defend Decisions to Seek Capital Punishment for First-Degree Murderers

County Attorney Andrew Thomas vowed to resist repeated attempts by judges of the Maricopa County Superior Court to pressure him to enter into plea deals that would mean dropping the death penalty for alleged first-degree murderers.

Judge Timothy Ryan is ordering County Attorney Thomas to personally attend a settlement conference in a death-penalty case in order to reach a plea agreement that almost certainly would preclude the death penalty. The settlement conference is Friday, September 18, 2009, at 1:30 p.m. in Judge Ryan’s court. The case involves Matthew Frank McEvoy (DOB 10/28/75), who is accused of shooting and killing Francisco Zamora in 2007. Judge Ryan has indicated he intends to do this with a number of death penalty cases by demanding that “a person with authority to settle the case” appear before the court. He has rejected the State’s previous offer to have senior officials in the County Attorney’s Office attend the hearings. Instead, he has ordered Thomas to attend.

On August 12, 2009, Judge Ryan went so far as to sanction the prosecution by striking the notice of intent to seek the death penalty in the Zamora killing. As a result, at this time the death penalty is not an option in this first-degree murder case. That sanction will be reconsidered on September 18th. The long-term effects of this apparently unprecedented sanction are unclear. At least one other Superior Court judge has threatened he might also adopt sanctions to compel the County Attorney to appear in court and strike plea deals in death-penalty cases.

This controversy is the latest in Thomas’ attempts to enforce the death penalty in Maricopa County and end the delaying tactics that have effectively frustrated the proper use of capital punishment for decades. The most recent illustration of this is the example of Viva Leroy Nash, the oldest man on death row. After serving 25 years for the attempted murder of a Connecticut Police Officer in 1947, Nash killed a man during a robbery in Utah in 1977 and was sentenced to life in prison. He escaped from a Utah prison in 1982 and fled to Arizona where he killed a coin store clerk in north Phoenix. He was sentenced to death in 1983. Nash is now 94-years-old and his attorneys claim he shouldn’t be executed because of competency issues related to his advanced age.

For the past 13 years, the County Attorney has followed procedures to ensure a careful review of the facts in each first-degree murder case before a decision is made to seek the death penalty. A team of veteran prosecutors, known as the Capital Review Committee, meets to consider each potential death-penalty case. They then make a recommendation to the County Attorney, who ultimately decides.

If these recent attempts by Superior Court judges are successful, Thomas might be required to attend settlement conferences in each of the 116 capital cases currently pending in the Superior Court. By the same reasoning, there is no logical reason why he couldn’t be compelled to attend settlement conferences in other cases involving homicide or any of the other approximately 40,000 felony cases filed each year in Maricopa County. In short, the ordering of Thomas to attend personally is meant to impose an impossible burden on the prosecution, thus laying the foundation for plea bargains of capital cases.

Today, the State filed a bench memorandum with Judge Ryan to rebut claims that the County Attorney’s Office is seeking the death penalty in an inordinate number of cases. While the number of death penalty cases filed in Maricopa County has not dramatically increased since 2004, the backlog remains daunting at 116 cases pending. In fact the increase in the number of capital case filings has only increased on average by 1.4% a year since 2004. During that same period of time homicides have increased by 2.4% a year in Maricopa County and the yearly increase in the national population was 3.3%.

Thomas stated, “The decision to seek the death penalty is not made lightly. It is perhaps the most important decision I make as county attorney. But let there be no misunderstanding: I will continue to seek this ultimate punishment against vicious first-degree murderers in all appropriate cases. I campaigned for county attorney, and was elected to this office twice, by making that promise to the voters. I will not break that promise. These escalating attempts to pressure me to plea-bargain death penalty cases are wrong, and I will stand firm against them.”

Thomas insists the backlog is not because of the number of cases filed but they way in which they are handled. The current judicial rotation policy rotates assignments for judges every two years. As a result, veteran judges with the experience to hear death penalty cases have been moved to less critical assignments. In 2007, the Arizona Supreme Court issued a report on the death penalty in Maricopa County which included the following recommendation:

“Under the current court policy, judges are rotated among assignments every two or three years. This policy substantially aggravates the shortfall in judicial resources. The current rotation policy is counterproductive for several reasons. First, the level of scrutiny focused on capital cases makes it more likely that a judge’s decision-making will be examined and re-examined for error. Thus while capital trials should be assigned to more experienced members of the criminal bench, a number of experienced criminal judges are rotated off the bench each year. Additionally both victims’ family members and criminal defendants have expressed frustration with the judicial rotation system.”