Is the death penalty in Arizona on life support?

In the minutes before he was put to death, Robert Comer nodded at me through the glass of the execution chamber at the Arizona State Prison Complex-Florence.

He was already strapped to the gurney. When I didn’t respond, he nodded at me again, as if demanding an affirmation of life at the moment of his death. I nodded back. He looked to his girlfriend, also in the witness room, and mouthed the words “I love you,” until the drugs took effect and his head dropped back.

Robert Moormann smiled beatifically and rocked his head back and forth until the sight ran out of his eyes. He died with them part-way open.

Daniel Cook blubbered and wept and then stiffened slowly, chin jutting up, back arching, for 35 minutes until he was pronounced dead.

Jeffrey Landrigan stared out at the execution witnesses with a look on his face that belied the awkward finality of his situation, then stared at the ceiling until he was dead.

Joseph Wood was stoic, and quietly went to sleep — for 13 minutes. After that, his mouth popped open as if he were blowing smoke rings. His abdomen lurched, and he gasped and snorted for nearly two hours.

It could be said that they got what was coming to them.

The death penalty is supposed to be reserved for the “worst of the worst” murderers, and the crimes committed by those five men arguably met the standard.

Comer had killed a man at a Tonto National Forest campground, then tied another man to the bumper of a car and kidnapped his girlfriend, raping her repeatedly in front of his own girlfriend and her kids.

Moormann was out of prison for a family visit with his mother at the Blue Mist Hotel in Florence. He killed her during sex, then chopped up her body and threw the pieces in garbage cans around town.

Cook and an accomplice tortured and sodomized two co-workers in an apartment in Lake Havasu City.

Landrigan was convicted of stabbing a man to death in a Phoenix tryst that turned into a robbery and murder.

Wood murdered his estranged girlfriend and her father at the Tucson auto-body shop where they worked.

These men were all sentenced to death. They were all executed.

FAQ: Why Arizona executions face scrutiny

But things are always more complicated than they should be.

The death penalty can be ironic: Comer wanted to die. When he said so, the court, by law, had to question his sanity, and he battled his own lawyer for the right to be executed.

The death penalty can be illogical: In the six months before Moormann was put to death, Arizona taxpayers paid for his emergency appendectomy and a quintuple bypass. Then, just two week before his execution, the state transported him to a hospital when he was found unresponsive, keeping him alive so that he could be killed.

The death penalty can be inconsistent and randomly applied: Cook’s accomplice, who had committed the same murders as Cook, was allowed to plead to a lesser charge and a 20-year sentence in exchange for his testimony against Cook.

The death penalty can be fallible: Weeks before his execution in 2010, Landrigan’s defense attorneys got DNA results from the clothing of his supposed victim, which had blood and semen stains from two different men — neither of them Landrigan. He was executed anyway.

Also for Landrigan, the Arizona Department of Corrections obtained its execution drugs unlawfully from Great Britain, setting off legal reactions on both sides of the Atlantic to shut down that drug pipeline.

Which led to Wood, who was executed in July 2014 with a relatively new — some say “experimental” — drug combination that obviously didn’t work as intended.

Executions in Arizona have been on hold ever since.

The worst of the worst

The less you know about the death penalty, the more certain your convictions are, either for or against.

Historically, supporting it has been an effective campaign tool for law-enforcement hard-liners who get elected for being tough on crime.

I thought I opposed the death penalty until I covered the 2004 trial of Juan Velazquez, who kicked to death his girlfriend's 20-month-old daughter and threw her 3-year-old sister into a wall, fracturing her skull.

Then he made the girlfriend drive him to his mother’s house, where he found a block of concrete and some wire, which he tied to the baby’s body and threw her in a canal. He then made the girlfriend take him home before they called police to say the child was missing.

If you believe in the death penalty, you can find poster boys in defendants such as Velazquez.

Or Dale Hausner, the Serial Shooter, and Mark Goudeau, the Baseline Killer, who in 2005 and 2006 killed 17 people between them and raped or injured dozens more in their crime sprees.

Both were sentenced to death multiple times. Hausner killed himself on death row. Goudeau is awaiting his appeal.

But what of Tom West, who was executed for bludgeoning a man who interrupted him during a burglary near Tucson? He tied the man up to make his getaway and the man died. As tragic as it was, it did not rise to anything near the horror of the crimes committed by Hausner and Goudeau.

And what of Crisantos Moroyoqui-Yocupicio, who killed a drug-cartel associate and cut his head off to make sure he would not come back to life? The Maricopa County Attorney’s Office, the same agency that prosecuted Hausner and Goudeau, allowed Moroyoqui to plead guilty to second-degree murder and a 14-year prison sentence.

Prosecutors have enormous discretion. They decide what the charge is, choose whether to seek the death penalty and offer plea agreements.

"You can’t have a formula if you decide each one on its merits,” Maricopa County Attorney Bill Montgomery once explained.

In 1972, in a decision called Furman vs. Georgia, the U.S. Supreme Court decided that the imposition of the death penalty was too random and that it was imposed at the whim of prosecutors, infrequently and inconsistently. It asked the states to come up with ways to “narrow cases,” that is, to identify the worst of the worst cases that truly deserved death. In the meantime, the death penalty was shelved, and hundreds of sentences were commuted or set aside.

Four years later, the high court reinstated the death penalty in a case called Gregg vs. Georgia, which allowed the concept of “aggravating factors,” acts that would distinguish a particular murder over others and thus qualify for death. Arizona retooled its own capital sentencing, though it took two tries before it got past the U.S. Supreme Court, which ruled the first version unconstitutional because it did not sufficiently provide mitigating circumstance that could sway a judge away from a death sentence.

The Arizona statute initially had six aggravating factors: a prior conviction that could have called for a life or death sentence; a prior serious, violent offense; grave risk to others; killing for hire; killing for monetary gain; or for a murder that was heinous, cruel or depraved.

But the list grew as the state Legislature added more and more reasons to call for the death penalty: multiple homicides, the age of the victims, if the murder was the result of gang activity, and so on, until there were 14 aggravators. And the Legislature kept trying to add more.

In 2014, then-Gov. Jan Brewer vetoed an aggravator passed by the Legislature in which the death penalty could be imposed for “a substantial likelihood that the defendant would commit criminal acts of violence that constitute a continuing threat to society.” In other words, for the possibility that someone might commit crimes in the future.

Brewer said the proposed aggravator was “overly broad and vague.”

In her veto she wrote, "The proposed additional language in the legislation broadens the scope of those eligible for the death penalty to the point where the constitutionality of Arizona's death penalty statute likely would be challenged and potentially declared to be unconstitutional."

Brewer and her advisers realized that the death-penalty statute was getting dangerously close to pre-Furman days, with death notices issued solely at the discretion of prosecutors.

Some Arizona defense attorneys felt the state already was there. Two Phoenix defense attorneys, Garrett Simpson and Susan Corey, gathered data from 866 homicide cases over 10 years and found that all but 10 of them had potential aggravating factors that could have turned them into capital cases.

But only a fraction of them were actually charged as capital cases, for reasons that were not always clear. One man killed another with a hatchet and chopped him up because he thought the man was seeing his girlfriend. Second-degree murder. Another man kicked in the door of his ex-girlfriend’s new boyfriend's home and shot him to death. First-degree capital case. A man beat his aunt to death over a carton of cigarettes. Second-degree. Another man shot a man on a bike. Death-penalty trial.

Judge upholds Arizona death-penalty law

Corey and Simpson and 40 other defense attorneys took the matter to court, claiming that the statutes should narrow the parameters of the death penalty and not leave decisions entirely to prosecutors.

The judge agreed, but felt bound by a footnote in an Arizona Supreme Court decision upholding the statutes. It was a matter for the high court to decide, he ruled.

The state Supreme Court justices chose not to hear the case, with no explanations given.

The death penalty is expensive

There is a substantial cost to taxpayers of filing what is called a notice of intent to seek the death penalty.

The defense alone for Jodi Arias’ two trials in Maricopa County Superior Court cost $3.57 million, and that doesn’t include the cost of her ongoing appeal. Though trial watchers were offended at the expense, it was not an isolated case, nor even the most expensive.

Jeffrey Martinson was convicted in 2011 of killing his 5-year-old son, but the conviction was overturned because of certain witness testimony. Then the charges were dismissed because of prosecutor misconduct. The dismissal was appealed by the Maricopa County Attorney’s Office. The case so far has cost taxpayers $3.67 million.

Baseline Killer Mark Goudeau, whose case is still in the state appeals court, has so far racked up a defense tab of $2 million. That bill has also been picked up by Maricopa County.

Costs of prosecution are harder to track because police and prosecutors who handle those cases are salaried government employees.

Whereas a defendant in a non-capital first-degree murder case may be provided with a lawyer paid for with county tax dollars, a capital defendant gets two death-sentence-qualified attorneys, an investigator and a mitigation expert to gather testimony as to why the death sentence should not be applied. Trials may be put off three or more years as the case is put together.

The Maricopa County Office of Contract Counsel assigns and hires defense attorneys for capital cases that can’t be handled by the county’s three public-defender agencies. It says the defense cost in a non-capital first-degree murder trial averages $27,191.

The defense cost of a capital-murder case that ends in a plea agreement to a lesser sentence jumps dramatically, to an average of $213,337.

A capital case that goes to trial and results in a not-guilty jury verdict costs the county an average of $580,255 for defense.

A capital trial that ends in a death sentence costs an average of $1,066,187 to defend.

Those figures do not include the defense costs of cases that go on to federal court, as most death sentences eventually do.

The Office of Contract Counsel has to assign attorneys immediately, and therefore must assess whether a case might go capital even before prosecutors file a death notice. It adds up.

According to data compiled by the Maricopa County Superior Court, from 2010 through November 2015, 194 ongoing capital cases in the county were closed. Of those, 28 — or 14 percent — actually ended in death sentences. In 22 of the cases — or 11 percent — a jury returned a verdict less than death.

But 74 percent of the cases that started out as capital cases — 144 out of 194 — ended in pleas to life in prison or less, or the death notice was dropped

Using the average cost of a capital-case plea deal calculated by the Office of Contract Counsel, those 144 cases could have amounted to as much as $30.7 million to defend. If every one of them had gone to trial as a non-capital case, using the OCC average, they would have cost $3.9 million.

That’s only the beginning.

A gamut of reactions

When the jury foreperson read the death verdict for Juan Velazquez, who killed his girlfriend's toddler in 2001, a sudden, high-pitched squeal filled the courtroom.

The unearthly squeal began to crescendo, and it took several seconds to realize it was coming from Velazquez’s sister and female cousins, all unable to suppress the same spontaneous shock, grief and weeping.

Cory Morris, who, in 2002 and 2003, strangled five women during sex and kept their bodies in the trailer he lived in until they were severely decomposed, stared silently ahead as his death verdicts were read. (During closing arguments for his 2005 trial, he had asked a courtroom deputy to handcuff him because he was so enraged by the case prosecutor that he worried he could not restrain himself.)

Frank McCray, who forced his way into a woman’s apartment in 1987 and killed her but was not caught for nearly 15 years, wept uncontrollably.

Dale Hausner, the Serial Shooter convicted of six murders during a 15-month shooting spree in 2005 and 2006, thanked the jury as he was escorted out of the courtroom after they imposed six death sentences. Then he gave a thumbs-up to reporters.

None of them has yet been executed. Hausner took his own life on death row because he was unable to speed up his execution, and possibly because he was afraid of being done in by other inmates.

Dale Hausner: 'Serial Shooter' turned poet in final days

The sentencing is just the beginning.

In Arizona, it takes 17 years on average to get from from death sentence to execution. But in some cases, it takes much longer. Some inmates die of old age on death row.

Though 306 death sentences have been imposed in Arizona since 1976, only 37 prisoners have been executed since then, all of them after 1992. Only 119 people remain on Arizona death row now. Twenty-one died while on death row, either from natural causes, suicide or murder. The rest were re-sentenced or released.

Appeals are a big part of the reason why comparatively few have been executed. Texas, for example, has executed nearly 500 in the same time period.

The first court event after a death sentence is a direct appeal to the Arizona Supreme Court, which takes about two years. The justices review only the court record and allow the defense and prosecutor a short argument.

Those few sentences or convictions that are reversed and remanded for retrial may not result in new death sentences — and may not even be retried as death cases.

Occasionally, if a death sentence is upheld in direct review, it may go up to the U.S. Supreme Court. But usually it goes back to state court for post-conviction relief proceedings. During PCR, as it is called, a new attorney can bring up new evidence or claim ineffective assistance of counsel from the first trial's defense attorney.

If there is no relief, the case can bounce between state and federal courts for 20 years. Many death sentences are knocked down there.

According to the Federal Public Defender's Office in Phoenix, of the 306 death sentences imposed in Arizona over the last 40 years, 129 — 42 percent — were reversed or remanded on appeal.

Occasionally, cases are thrown out altogether. Since 1975, nine Arizona death-row prisoners have been exonerated or otherwise had their convictions and sentences thrown out.

Ray Krone, for instance, was sentenced to death in 1992 for killing a bartender in a Phoenix bar, based on bite marks on the woman’s body that were matched to his twisted teeth. That sentence and conviction were thrown out three years later, but Krone was found guilty again and spent seven more years in prison before he was cleared by DNA in 2002. The bite-mark expertise has since been denounced as junk science. The DNA led to the real killer.

I'm the best argument against death penalty

Once, over beers, Krone asked me why an ordinary Air Force veteran and postal worker who liked to work on cars like himself would be a murder suspect in the first place.

Krone, incidentally, collected more than $4 million in legal settlements for his troubles.

More recently, Debra Milke, who spent 24 years on death row for allegedly having her son killed, was freed after a U.S. Court of Appeals threw out her conviction and sentence because of misconduct by the same prosecutor who obtained Krone's conviction. The Arizona Court of Appeals subsequently dismissed all charges, ruling that retrying her would amount to double jeopardy.

Debra Milke’s new world after a half-life on death row

“Just imagine being locked in your bathroom for 24 years and no one will let you out,” Milke said in an interview. “Just as I had to adapt to prison, now I have to adapt to freedom.”

Other lengthy delays in executions are caused by court battles elsewhere. And as soon as a question regarding death sentences hits the U.S. Supreme Court, executions stop all over the country.

Arizona did not execute anyone between 1962 and 1992, largely because of litigation.  Besides, public opinion favoring the death penalty hovered at about 40 percent.

The Furman decision in 1972 could have ended it completely. It had already shut down executions by the time the ruling was issued. More than 500 death sentences across the country were subsequently commuted.

Meanwhile, Arizona, like the other states that practiced capital punishment, set about writing new death-sentence statutes. When the Gregg decision reinstated the death penalty in 1976, the Arizona statute did not pass muster with the high court and needed to be retooled. Pending cases had to be re-evaluated.

Arizona finally got back to executing inmates in 1992, when a killer named Donald Harding was put to death in the gas chamber. His death was so ghastly that Arizona moved to more humane lethal injections.

Arizona execution methods: a short, gruesome history

Then, in 2002, the U.S. Supreme Court, in an appeal by Arizona killer Timothy Ring, ordered the state to change its death statute so that juries, not judges, determined aggravating factors. The state had to rewrite the statute, wait for a second high-court decision to determine how many death sentences had to be retried, then carry out the evaluation of more than 30 sentences. Many of them came back less than death after retrial.

Finally, Arizona scheduled an execution for 2007 and scrambled to find an executioner. It settled for a Missouri doctor who had been barred from carrying out further executions by a federal judge in his home state, and subsequently outed by journalists for continuing to conduct executions for the federal government, including that of Oklahoma City bomber Timothy McVeigh. He executed Robert Comer.

Next up was Jeffrey Landrigan, but his execution was postponed because of another U.S. Supreme Court case, this time involving the lethal injection process itself. The method was deemed constitutional, and Arizona had to measure its own against the standard set by the high court.

Landrigan was executed in 2010, but only after a running skirmish over the source of the death drugs, which were later found to be improperly obtained from the U.K. Arizona continuously fought off challenges to the drugs it used and refused to reveal its sources. It changed the exact drug protocol several times, before landing on the combination that almost didn’t kill Joe Wood in 2014.

Wood's complicated execution prompted an injunction in federal court, and there have been no executions since.

For lack of drugs

On October 25, 2010, five members of the press cleared as witnesses to Landrigan's execution reported to the parking lot of Arizona State Prison Complex-Florence at about 8 a.m. Everyone left wallets, phones, keys and notebooks behind. Reporters were wanded with a metal detector, loaded onto a short bus and driven all of 100 yards, just beyond a guard post to a classroom on the outer edge of the prison itself.

The execution was scheduled for 10 a.m. It didn’t happen.

Instead, there was a 12-hour wait as a stay of execution worked its way from the 9th U.S. Circuit Court of Appeals to the U.S. Supreme Court.

At issue was the first drug in the three-drug execution protocol, sodium thiopental. It was an outdated anesthesia that, since lethal injection was invented in 1977, was used to induce unconsciousness. Then a drug to paralyze the prisoner was injected, followed by potassium chloride, which literally makes the heart seize up like gears in a car without oil.

I had first reported on a shortage of the drug that May, when prosecutors in Ohio brought it to the attention of the court before an execution there. The Arizona Department of Corrections was subsequently put on notice by the Arizona Supreme Court that it would not issue any execution warrants until the department made assurances that it actually had thiopental in hand.

In late September 2010, the Arizona Attorney General’s Office said the drug had been obtained, though it would not say how. When contacted by The Arizona Republic, a spokesman for the only U.S. manufacturer of the drug said that it could not be theirs and that the drug could not legally be imported into the country.

Early the next month, during a hearing before the Arizona Supreme Court, an assistant attorney general told the court the thiopental had not come from that manufacturer. He sidestepped actually saying it came from abroad.

Then on Oct. 25, the day before the execution, then-Attorney General Terry Goddard confirmed to The Republic that the drug came from Great Britain. The subsequent news story went viral.

A U.S. District Court judge in Phoenix stayed the execution, ordering the state to reveal its drug source. The 9th Circuit upheld the stay. Finally, shortly after 7 p.m., the Supreme Court issued a 5-4 ruling. “There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect,” it said.

Landrigan was pronounced dead at 10:26 p.m.

But opinions as to whether the drug was unlawfully obtained changed.

At the end of November 2010, Great Britain banned exports of thiopental for use in executions. Citizens of the European Economic Community are forbidden from participating in executions anywhere in the world.

The next January, the BBC outed the supplier, a small middleman operating out of the backroom of a driving school in West London. He had probably obtained the drug elsewhere in Europe.

The U.S. Food and Drug Administration conceded the drug could not be imported into the country, but said it was exercising enforcement discretion. Documents obtained under the Freedom of Information Act revealed great chagrin in the agency over how to handle the media, with concerns going up to the White House.

Then came floods of public documents requested from the FDA and the Arizona and California corrections departments. They showed that local FDA officials were in on the importation. Arizona corrections officials were picking and choosing airports, and listing on manifests that the drugs were for animal use.

Arizona provided thiopental to California. Emails between those states’ corrections officials describe, blow-by-blow, a clandestine overnight mission in which the Californians drove to Florence for the drugs. Then, an assistant director from California sent a thank you note to his equivalent in Arizona, saying, "You guys in AZ are life savers."

That email was picked up by comedian Stephen Colbert, who satirized it on his nationally televised “Colbert Report.”

In June 2011, the feds stepped in. The U.S. Drug Enforcement Administration started confiscating thiopental or forbidding its use in death-penalty states, forcing Arizona to switch to the barbiturate pentobarbital a day before a scheduled execution.

It worked fine as the first drug in the three-drug protocol. And at a later execution, when the state realized its supply of another of the drugs had expired, it carried out several executions using only pentobarbital. It still worked fine.

Then in March 2012, a U.S. District Court judge in the District of Columbia ruled that thiopental could not be lawfully imported, a decision upheld a year later by the D.C. Circuit Court of Appeals.

As for pentobarbital, from the very first use, the Danish pharma that produced the drug objected to its use in lethal injections and instituted market controls to keep it from being used for executions. The supply available to prisons dried up.

Enter midazolam, a relative of Valium, often used as a sedative in minor surgical procedures such as colonoscopies or biopsies, or as a first drug in more serious surgeries.

The last Arizona execution?

The Joseph Wood case was not particularly memorable in itself, nor relevant to readers in Phoenix, but I asked to attend as a witness because of the increased notoriety of the drug. I wanted to be there if things went bad, as they had in executions in Ohio and Oklahoma. It was July 2014.

The Oklahoma execution had been spectacularly botched. That state used midazolam as the sedative in a three-drug protocol. The doctor performing the execution, it turned out, did not have a long enough needle to secure a catheter in the femoral artery in the prisoner’s groin. The midazolam went in, it appeared, and Clayton Lockett, the prisoner, was sedated. But then the needle slipped out of the vein and dumped the paralytic and the potassium chloride into soft tissue. Lockett reacted, seemingly coming to and writhing. The execution was stopped, but he died of an apparent heart attack.

The Ohio execution used midazolam with a painkiller called hydromorphone, and witnesses noticed that the prisoner gasped for breath, and it took him longer to die than the usual 10 ten or so minutes.

Wood’s execution used the same drugs as the Ohio execution. It started off well, if such a thing can be said. He closed his eyes and seemed to slip into unconsciousness. But then his mouth suddenly popped open, like that of a fish on dry land gulping for oxygen. A moment later, he lurched again, and again. I began to count the breaths with cross-hatches using the pencil and sheet of paper I had been issued by corrections officials. I counted more than 640 by the time he was pronounced dead nearly two hours later.

Reporter describes Arizona execution: 2 hours, 640 gasps

Every time the executioner came into view to check Wood's level of consciousness, he turned on a microphone to announce that he was still sedated. In the background, Wood could be heard snorting loudly each time his mouth opened.

Corrections personnel in the witness room looked at each other nervously. Two of Wood's lawyers slipped out of the room, and it was later disclosed that they had gotten an assistant attorney general and a federal judge on the phone, trying to stop the execution. Arizona Corrections Director Charles Ryan held a press conference the next day to say the execution went fine. A spokesman for the state Attorney General’s Office described the death as “peaceful,” and said Wood was simply snoring.

U.S. District Court Judge Neil Wake did not agree. He put executions on hold pending an investigation. And after years of permitting Corrections to proceed as it wished, he put the agency on notice that he wanted the issue to be fully litigated.

Days after the execution, it was revealed that Wood had been injected with 15 doses, each of which was supposed to be lethal.

Midazolam on trial

Executions continued elsewhere in the U.S. with midazolam.

In April 2015, the U.S. Supreme Court heard oral arguments in the Glossip case, which pertained to a prisoner awaiting execution in Oklahoma. The high court found midazolam's use constitutional.

Supreme Court upholds use of lethal injection drug implicated in botched executions

However, Arizona awaits Wake's ruling as to whether the state can resume its executions. The judge has asked the Arizona Department of Corrections to clearly specify what drugs it has available and how it intends to carry out future executions.

In a hearing earlier this month, Wake took the agency to task for consistently straying from protocols agreed to in court. He claimed that the agency's investigation of the Wood execution, which praised the agency itself for its high standards and efficiency, did not really explain what went wrong.

The state also conceded in the hearing that its supply of midazolam will expire May 31, and it had not been able to acquire more because pharmaceutical companies would no longer sell it for executions.

Federal judge considers lifting execution ban in Arizona

A death warrant, a document issued by the Arizona Supreme Court permitting corrections officials to schedule an execution, requires 35 days from issuance to execution. The last date to get a death warrant from the court before the state's midazolam expires will be April 27 — unless the corrections department has found a new source of the drug that it has not yet revealed.

Wake's ruling on whether or not to allow executions to resume is expected any day. If he decides to go forward with litigation on midazolam, a new question arises: Where does that leave the death penalty in Arizona?