An ambitious prosecutor seeking re-election, a governor trying to figure out what is wrong with her state’s death penalty system, a victim’s family pushing to see a killer executed, an attorney general seeking to guard her authority in the death penalty system, a death row inmate whose fate is in the balance—these elements are a familiar part of the story of capital punishment across the country. But all of them are now vividly on display in Arizona, where the political motives of an ambitious county attorney are driving a contest over the rules governing who gets to say when it is time to issue a death warrant.
The mess in Arizona has arisen in the case of Aaron Gunches. Gunches, who was sentenced to death for the 2002 killing of his girlfriend’s ex-husband, Ted Price, pled guilty to a murder charge in the shooting death. He has been on death row since 2008.
The Gunches case has had more than its share of twists and turns up to this point. But now, Maricopa County Attorney Rachel Mitchell has added a new and troubling wrinkle.
She is defying law and logic to claim authority that she does not have as she seeks to secure a death warrant for Gunches. A local news report makes clear that under Arizona law “it is solely up to the attorney general to ask the Arizona Supreme Court for the necessary warrant to execute someone once all appeals have been exhausted.”
Nonetheless, on June 5, Mitchell, who is a Republican, took the unprecedented step of filing a motion with the Arizona Supreme Court in what she herself admitted is “a move to ultimately seek a warrant of execution for Aaron Brian Gunches.”
Mitchell’s political motives are clear. In 2022, she was elected with 52% of the vote after a hotly fought contest with Democrat Julie Gunnigle. This year, she faces what is shaping up to be a similarly tight race for re-election.
The Gunches case offers her a chance to reinforce her tough-on-crime credentials and score points as a strong supporter of victims’ rights.
The complications of that case include the fact that in November 2022, Gunches himself asked the state supreme court to allow his execution to move forward. Republican Mark Brnovich, who was then Arizona’s attorney general, joined him in that request.
The court granted Gunches’s request.
But after Brnovich was defeated for re-election, Gunches changed his mind. In January 2023, Democrat Kris Mayes, the new attorney general, joined him in asking the state supreme court to withdraw the execution warrant.
However, the court rejected Mayes’s request and set an execution date. Then Governor Katie Hobbs got involved.
Despite the court’s actions, Hobbs said that her administration would not proceed with the execution. She argued that the death warrant only “authorized” the execution but did not require that it take place.
An Arizona State Law Journal article noted that “Governor Hobbs’s decision not to move forward with the warrant for execution raised the constitutional question of whether she was able to ignore the warrant or whether it required her to act.”
It reported that “Karen Price, the victim’s sister, and her attorneys…sought a writ of mandamus (an order that compels a public official to fulfill a non-discretionary duty imposed by law) against Hobbs to force her to execute Gunches. Price argued that the language of the execution warrant allowed for no discretion and mandated that Hobbs enforce it. “
However, “The Arizona Supreme Court sided with Governor Hobbs.”
As the law journal says:
The court held that the execution warrant that it issued ‘authorized’ the Governor to proceed with the execution of Mr. Gunches. This authorization, however, did not rise to the level of a command. The warrant gave the governor the authority to move forward with the death penalty, but it did not contain any binding language requiring the governor to do so.
Moreover, soon after she took office, Hobbs had announced a pause in Arizona’s executions because of what she called a “history of executions that have resulted in serious questions about [the state’s] execution protocols.” She also launched a Death Penalty Independent Review, led by retired Judge David Duncan.
At the time, Governor Hobbs said that “Arizona has a history of mismanaged executions that have resulted in serious concerns about ADCRR’s execution protocols and lack of transparency. That changes now under my administration…. A comprehensive and independent review must be conducted to ensure these problems are not repeated in future executions.”
Mitchell complained that the review was proceeding too slowly. “For nearly two years,” Mitchell said, “we’ve seen delay after delay from the governor and the attorney general. The commissioner’s report was expected at the end of 2023, but it never arrived. In a letter received by my office three weeks ago, I’m now told the report might be complete in early 2025.”
Then, allying herself with the family of Gunches’s victim, she said, “For almost 22 years,” she said, “Ted Price’s family has been waiting for justice and closure. They’re not willing to wait any longer, and neither am I.”
Mitchell claims that because “each county represents the state in felony prosecutions that occur in Arizona… I also can appropriately ask the Supreme Court for a death warrant. The victims have asserted their rights to finality and seek this office’s assistance in protecting their constitutional rights to a prompt and final conclusion to this case.”
But even Mitchell knows that what she is doing has no basis in law. At the time she filed her motion, she acknowledged that “it is unusual for a county attorney to seek a death warrant.”
Unusual is a mild word for what Mitchell is trying to do. 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 request a warrant of execution … rests exclusively with the attorney general,” she told the court.
She said Mitchell had gone “rogue” and reminded her that “there is only one Attorney General at a time—and the voters decided who that was 18 months ago.”
She called out Mitchell for putting on a “cynical performance to look tough in her competitive re-election primary,” and treating that political imperative as “more important…than following the law.”
“The kind of behavior engaged in by…County Attorney Mitchell in the Gunches matter,” Mayes observed, “not only disrespects the legal process but also jeopardizes the working order of our system of justice.” If every county attorney could seek execution warrants, Mayes noted, it would “create chaos” in Arizona’s already troubled death penalty system.
What is going on in Arizona shows the lengths to which some supporters of capital punishment will go to keep the machinery of death running. And all of us, whatever our views of the death penalty, will be well served if the state supreme court delivers a decisive rebuke to Maricopa County’s dangerous effort to do so.
