Poorly executed: The politics behind Arizona's executions

Aaron Gunches killed a man on the Beeline Highway in 2002. His girlfriend’s ex-boyfriend came to visit and overstayed his welcome. The two exes quarreled, it turned physical, and the woman hit her ex-boyfriend in the face with a phone, not knocking him completely out, but making him groggy.

Gunches decided to put him on a bus out of town, so he and the girlfriend and two friends loaded the man into Gunches’ car.

But Gunches didn’t have enough money for bus fare. Instead, he drove the man out to the desert. He stopped the car and they all got out, including the ex-boyfriend. Gunches came up behind him and shot him four times in the back of the head. He threw the man’s belongings in the desert. Then he went on the lam.

A police officer pulled him over in La Paz County in western Arizona, and Gunches shot and wounded the officer before he was arrested. He pleaded guilty to attempted murder for that incident.

Back in Maricopa County, Gunches pleaded guilty to first-degree murder. He refused to be represented by an attorney at the hearing to determine if he should be sentenced to death, and that is exactly what a jury did in 2007.

Three years later, the Arizona Supreme Court threw out the sentence and sent the case back to Maricopa County for a do-over. In order to sentence someone to death, the prosecutors have to prove at least one aggravating factor that puts the murder among the worst of the worst. But the state’s high court took issue with the assertion that the murder was cruel, positing that someone who was shot in the back of the head but had no idea it was about to happen had not really suffered.

Gunches went back to trial in 2013, and that time, the fact that he had been convicted of shooting a cop in La Paz County was enough to put him back on death row.

In November 2022, Gunches sent a hand-written note to the Arizona Supreme Court asking that his sentence be carried out. 

“In 2018 Aaron Gunches ‘volunteered’ to have his sentence carried out,” he wrote, “but has effectively been ignored and in limbo ever since.”

The last two times that an Arizona death row prisoner volunteered for execution, it triggered a legal response. Both prisoners had to submit to mental competency exams. The state can’t legally execute someone who is insane, and if someone wants to die, he or she just might be insane. The two volunteers were assigned attorneys.

Robert Comer had gone through that in 2007, and he had two sets of attorneys, one of whom said he was incompetent and one who fought for his right to die. 

“This is my life. I made the decision to pull my appeals,” Comer said in a competency hearing. “Remember, I stuck a gun in the guy’s ear and pulled the trigger, scrambling his brains, right? You sentenced me to die. You have that right in this state. I don’t see where the big problem is.”

In 2013, Dale Hausner, the so-called Phoenix Serial Shooter who had been sentenced to death six times for people he shot from the window of his car, tried to do the same. He wanted to get it over with.

Hausner wrote me a letter from prison in which he said, “I am of sound mind, and I simply wish to get the punishment handed down to me, but more quickly. I mean really, what’s a guy got to do to get snuffed out?” He punctuated the last sentence with a smiley face.

Hausner died by suicide in prison because he was frustrated by the delay.

But in 2022, even though he had not carried out any executions in the first seven years of his term, and even though Gunches had first asked in 2018, then-Attorney General Mark Brnovich suddenly agreed to execute Gunches. In December, in the final days before leaving office, and without initiating competency hearings, he asked the Arizona Supreme Court to set an execution date. 

He was making up for lost time — and running for U.S. Senate. During the last year of his second term, Brnovich requested four warrants of execution from the Arizona Supreme Court. Three of those executions took place. Gunches was to be the fourth.

Then there was a regime change. Democrats Katie Hobbs and Kris Mayes narrowly beat their Republican opponents for governor and attorney general, replacing the Republican incumbents. They had concerns about how executions were carried out. 

Hobbs also appointed a new director of the Arizona Department of Corrections Rehabilitation and Re-entry (ADCRR) to replace David Shinn, who was responsible for the three executions in 2022. 

In one of her first acts as AG, Mayes asked the state Supreme Court to withdraw the request for an execution date for Gunches. She explained that “a thorough examination of the administration of capital punishment in Arizona is warranted before further warrants of execution are sought.”  

That same day, Hobbs ordered a review of Arizona’s execution procedures and protocols, to be conducted by an Independent Review Commissioner who will issue a final report with recommendations to the governor and attorney general.

“With the Arizona Department of Corrections, Rehabilitation and Reentry now under new leadership, it’s time to address the fact that this is a system that needs better oversight on numerous fronts,” she wrote in a public statement. “Arizona has a history of mismanaged executions that have resulted in serious questions and concerns about ADCRR’s execution protocols and lack of transparency. I’m confident that under Director (Ryan) Thornell, ADCRR will take this executive action seriously.”

In legal proceedings, parties are typically allowed to withdraw their own motions before they are ruled upon. But rather than simply granting the motion filed by the attorney general, the Arizona Supreme Court set an April 6 execution date for Gunches. 

The governor responded swiftly. In a statement, she said, “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties.”  

The sister of Gunches’ victim filed a special action in the Arizona Supreme Court, arguing that the death warrant was mandatory, not discretionary. Republican Maricopa County Attorney Rachel Mitchell and the GOP-controlled Arizona Legislature weighed in, supporting the victim’s sister.

The governor responded that it has not been shown that she has a clear legal duty to act. She argued the issue was one of separation of powers. Her response also included a declaration from Thornell, saying the department was not prepared to carry out an execution. He raised questions about the quality of the execution drugs and the qualifications of the executioners, claiming he didn’t know how to contact them. He pointed out that the department was seriously short-staffed and dealing with safety and infrastructure.  

The Supreme Court ruled in Hobbs’ favor. The execution would not go forward — yet. Gunches only heard the news in a video hearing where he waived his right to a clemency hearing.

“What exactly was this ruling?” he asked, according to reporter Jimmy Jenkins of The Arizona Republic. And when he learned that his execution was on hold, he grimaced and rolled his eyes, Jenkins reported. 

Gunches was the center of the argument and the last to know.

April 6 came, and Gunches was not in the death chamber. Instead, he was attending a court hearing over a telephone hookup.

Mitchell and the victim’s sister and daughter had filed another special action in Maricopa County Superior Court to try to force the state to extend the death warrant, which was to expire that night at midnight. It was a Hail Mary play.

“What can this court do?” Judge Frank Moskowitz said over and over. The matter was clearly out of his jurisdiction.

“The Supreme Court issues a warrant, not this court,” he said.

Deputy County Attorney Ryan Green persisted, asking for evidentiary hearings, asking for the judge to stop the governor’s office from granting a “de-facto reprieve.”

“Capital punishment is the law,” Green said. “It is the law. And the governor has an obligation to carry out the law.”

Finally, the judge ordered both sides to file briefs on whether or not the lapsed warrant constituted a reprieve and scheduled another hearing for late June.

As a final matter, Moskowitz asked Gunches if he had anything further to say.

In a deep, firm voice, Gunches replied, “I want my sentence carried out as fast as possible.”

A killing frenzy

The Gunches debate bore out differences in how Republicans and Democrats regard executions. It is no coincidence that recent executions correspond to election years.

President Donald Trump executed 13 federal prisoners in the last six months of his term as he stood for re-election. It had been 17 years since the last federal execution. Dale Baich witnessed one of those executions in August 2020, his fifteenth. 

Trump’s attorney general, William Barr, issued an opinion that the FDA no longer had any say over execution drugs, opening the door for states to bring the drugs in from overseas. 

Brnovich became attorney general of Arizona in 2015. There were no executions during the first seven years of his term.

But in July 2020, he fired his first salvo with a press release saying the AG’s Office had settled a lawsuit challenging lethal injection. With rhetoric about “justice served” and anti-death-penalty-advocates terrorizing drug companies, he urged then-Gov. Doug Ducey to purchase lethal injection drugs.

Brnovich, facing the end of his tenure as attorney general, announced that he was running for the U.S. Senate. He followed the Trump trajectory, calling for death warrants for two death row prisoners: Clarence Dixon and Frank Atwood.  

Dale retired from the Federal Defender’s Office in April 2022, after 26 years, so the cases fell to other attorneys.

Dixon was sentenced to death for raping and killing an Arizona State University student in 1978. Atwood killed an 8-year-old girl in Tucson in 1984.

ADCRR purchased the active pharmaceutical ingredient for making pentobarbital — enough to kill 200 people — from an unidentified source. It paid $1.5 million for the raw product, according to a heavily redacted invoice obtained through a public records request. In addition, more than $400,000 was paid to a compounding pharmacy to turn the drug into a sterile injectable that would be used in the two executions.

Because there were people who committed their crimes before the state changed the method from lethal gas to lethal injection in late 1992, ADCRR wanted to be prepared if any of those people elected to be executed by lethal gas. The department spent more than $2,000 in procuring the ingredients to make cyanide gas and refurbished the gas chamber, which was last used in 1999.

Dixon was first up, scheduled to be executed by lethal injection on May 11, 2022. Before the execution, however, records revealed that the compounded pentobarbital intended for use in his execution failed one component of the quality tests the state was relying on to set the drug’s expiration date beyond the date of his execution. The state produced an affidavit from a pharmacist that suggested that the drugs had expired at least a month before Dixon’s scheduled execution. 

In response to litigation, the state compounded a new, unexpired batch of drugs for Dixon’s execution.

The execution took place as scheduled, but it was not without problems. It took the execution team about 40 minutes to complete the IV insertion process. They were unable to set two functioning IVs in his arms or legs and resorted to slicing into Dixon’s groin area to set a femoral line, which resulted in a fair amount of bleeding and signs he was experiencing pain.

Atwood was executed the following month, on June 8, and the execution team had similar problems inserting two functioning IV lines. After several attempts, the executioners set one IV line in Atwood’s left arm. Then, after failing to set one in his other arm, began preparing to place a femoral line. Realizing what was about to happen, Atwood suggested to the executioners that they set the IV in his right hand, which they did successfully.

By this time, Brnovich had lost his bid for a U.S. Senate seat in the Republican primary. But he wasn’t done. Brnovich picked Murray Hooper, who murdered two people in Phoenix in 1980, as the next person to be executed. 

Hooper’s execution took place Nov. 16. Once again, the execution team resorted to setting a femoral IV after repeated attempts and failures to insert IV lines into his arms. Hooper turned to the viewing gallery as the execution team struggled to insert the IVs and said, “Can you believe this?”

From the perspective of the journalists who witnessed the three executions, nothing looked out of line. But unlike executions in the past, David Shinn, the final ADCRR director under Ducey, did not allow the full complement of five journalist witnesses allowed for in the protocol. Instead, he curated the list to three, causing other media outlets to sue for access.

Now what?

In February, Hobbs announced her appointment of former federal court Magistrate Judge David Duncan as the commissioner who would investigate Arizona’s execution protocol.

She said an investigation was warranted, given the state’s “history of mismanaged executions” and “lack of transparency.”

“That changes now under my administration and Director Thornell,” the governor said. “A comprehensive and independent review must be conducted to ensure these problems are not repeated in future executions. I’m more than confident that Judge Duncan has the expertise and ability to take on this crucial role.”

Can the state really make executions more efficient, less painful, more humane?

Therein lies the final irony.

They will still be killing people. Horrible, heartless people in many cases, perhaps. But people nonetheless.