State Supreme Court to hear death penalty challenge

Defense to argue death penalty laws are too broad

By Gary Grado
The Daily Record Newswire

The Arizona Supreme Court is going to consider on Oct. 27 a case in which a Phoenix man accused of murder is challenging the state's death penalty laws as too broad.

Macario Lopez, 41, is trying to make the case that the state can seek the death penalty on almost all defendants accused of first-degree murder. His lawyers contend that violates a U.S. Supreme Court precedent requiring the class of people eligible for the ultimate punishment to be as narrow as possible.

". . . within the Arizona death penalty scheme, first-degree murder encompasses many crimes where a defendant did not premeditate the killing; did not intentionally kill; did not commit the killing; and, indeed, where the defendant did not even know a killing would occur," wrote defense attorney Gary Bevilacqua in his petition to the state Supreme Court.

The court is going to rule without hearing oral arguments, according to an order issued by the court.

Arizona's Supreme Court has ruled the state sufficiently narrows the class by requiring a conviction of first-degree murder and a jury finding at least one aggravating circumstance to the crime.

Bevilacqua and co-counsel Eric Crocker argue, however, the court made that holding in 1991 when there weren't as many aggravating circumstances listed in statute as today.

The attorneys also argue that the current court has the benefit of a statistical analysis of Arizona State University professor Cassia Spohn which found that from 2002 to 2012 in Maricopa County 98.9 percent of first-degree murder cases had at least one aggravating circumstance a prosecutor could have pursued in good faith.

There are now 14 aggravating circumstances in the statutes, such as killing a police officer, killing a child, or killing someone in an "especially heinous, cruel, or depraved manner."

"The sheer number and breadth of today's statutory aggravating factors within the Arizona death penalty scheme as it currently exists narrows by only 1.2% the number of cases subject to death penalty prosecution," Bevilacqua wrote.

Former Gov. Jan Brewer vetoed a bill in 2014 that would have added human smugglers who kill to the categories that qualify someone for death row.

Brewer wrote in her veto message that the legislation, HB 2313, broadens death penalty eligibility to the point where the state's statutes could be declared unconstitutional.

Lopez is awaiting trial and facing the possible death penalty in the stabbing death of his girlfriend, 32-year-old Selina Navarro, in 2009. She was stabbed 20 times.

The U.S. Supreme Court found in 1972 that Georgia's death penalty law resulted in capricious and arbitrary sentencing, effectively wiping out the statutes of 40 states. The court upheld the newly written state laws in 1976.

The Maricopa County Attorney's Office is urging the state court not to take the case.

Deputy County Attorney Karen Kemper argued that Spohn's statistics don't tell the stories of individual cases that prosecutors analyze to determine whether to seek the death penalty.

Kemper said prosecutors are required to be careful and thoughtful in considering the death penalty, and may take into account any number of factors such as input from next of kin, the strength of the evidence proving guilt, whether there are any mitigating circumstances or the circumstances surrounding the crime.

Kemper also argued that now is not the time to bring up the issue with the Supreme Court because Lopez will be able to bring it through the normal appeal process if he is convicted and sentenced to death.

Lopez is appealing a decision of Maricopa County Superior Court Judge Joseph Kreamer, who found that while Arizona has several aggravating circumstances, the state narrows the class by the excluding juveniles and people with intellectual disabilities.

Bevilacqua said the problem with that reasoning is those two categories are actually defenses the defense has to prove, but they don't narrow the class of eligibility by statute as required by the U.S. Supreme Court.

Kreamer said he was "troubled by the apparent breadth of cases in which defendants are death-eligible in Arizona," but the state Supreme Court has already spoken on the issue and found the laws are constitutional.

Published: Mon, Oct 26, 2015

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