Now in Legal Rebels:
Posted Apr 01, 2010 09:40 am CDT
In 2006, only his second year in office, Maricopa County Attorney Andrew Thomas increased the number of death penalty cases filed by 44 percent over the previous year.
The move may have been popular with many Maricopa constituents, but the result has been a court system that is slower, more expensive and less responsive than it should be, according to critics.
“There are more pending trial-level death penalty cases in Maricopa County than in any other county in America,” says Larry Hammond, who chairs the Arizona State Bar’s Indigent Defendants Task Force and is a former president of the American Judicature Society. “As of two years ago, we had more than Los Angeles County, Harris County [Houston] and Clark County [Las Vegas] all combined.”
Defense attorneys say the cases drag out and too often plea offers from the prosecutor’s office come very late in the process, if at all. And they question whether line prosecutors have any authority to deal.
“When I begged for a deal, all of the prosecutors would say, ‘I have to run it by the man,’ ” says Kenneth Everett, who for 10 years handled capital cases for the Maricopa County Legal Advocate. “Thomas certainly had the ultimate power. And if he said ‘no,’ you were going to trial. And he usually said ‘no.’ ”
The Arizona Supreme Court created a Capital Case Task Force in 2007 to look at some of the practical obstacles to the state’s administration of capital punishment. Maricopa County’s death case backlog was seen as an allocation of time and resources that could be better spent.
“They filed notice of death penalty in a much greater percentage of cases than other jurisdictions, and the follow through rate was less—they eventually bargained down or juries ultimately wouldn’t impose death,” says retired Judge Ron Reinstein, who was on the task force. “The disposition in those cases is usually not for a couple of years, and some would say a couple of years of wasted resources.”
“Some critics say that death notices should be filed only when there is the intention to go forward, and not use it as leverage,” Reinstein says. “And they argue that it triggers a lot of spending—each death case requires two defense attorneys, two prosecutors, a mitigation specialist, and investigators and more.”
Thomas’ spokesman, Barnett Lotstein, is unapologetic.
“We do not consider costs,” he says. “We are the executive branch. It’s up to the legislature or the Board of Supervisors, or whoever sets budgets and tax rolls, to make sure there is sufficient money to seek justice.”
The county attorney’s office has a capital-case review committee made up of seasoned homicide prosecutors, Lotstein maintains. They weigh various factors in each first-degree murder case, both aggravating and mitigating. The county attorney either accepts or overrules their recommendation.
“There have been a few exceptions, but generally the county attorney has gone along with their recommendations,” Lotstein says.
Lotstein has heard all the complaints about death notices. His response is pointed: “When we got criticism in court or at meetings, we’d say ‘Just tell us, judge, which cases?’”
In May 2007, Judge Warren Granville did just that.
Patrick Wade Bearup was one of three men accused of killing a man over a debt, but the only one to receive the death penalty. The other two cut deals with prosecutors, though they had been far more culpable, in Judge Granville’s opinion; one had crushed the victim’s skull with a baseball bat, the other had shot the victim twice in the head with a shotgun. Bearup maintained his innocence, but was said to have bragged about cutting off one of the dead man’s fingers in order to retrieve a ring.
In his minute notes, Granville wrote that Bearup’s conviction was likely appropriate, but the disparity in sentencing was not. He said the death penalty for Bearup “was not justified in the context of relative responsibility of the co-defendants … . It is the county attorney’s motto that ‘let justice be done.’ …This court finds that justice was not done for Mr. Bearup … .”
The death sentence, however, was affirmed on appeal.
Tom Bearup, Patrick’s father, had once worked for Maricopa Sheriff Joe Arpaio. He ran the department’s communications efforts, no small job in the promotion of “America’s Toughest Sheriff.” But in 1996, Bearup says, he became concerned about the death of a inmate who had died after being restrained by sheriff’s deputies. While a medical examination indicated no wrongdoing, Bearup released the body to the family for a second autopsy. The new pathologist found differently, Bearup says, and the county settled with the family for $8.25 million.
Bearup quit the sheriff’s office and ran against Arpaio in the 2000 election. He says he was harassed by Arpaio’s deputies, and testimony in an unrelated lawsuit suggests Bearup’s telephone had been tapped, though a subsequent FBI investigation was inconclusive. Bearup ran again against Arpaio in 2004, but lost. He then moved back to his home in Soldotna, Alaska, where he once had been mayor. He now is pastor of the Family Bible Fellowship & Academy there.
The elder Bearup thinks his political opposition to Arpaio is the reason that his son is the only one of three accused in a killing who now face death.
“I think they put my son on death row so they can kill him to get back at me,” Bearup says.