By: Olivia Li

“The right to die is not synonymous with the right to kill”; “to allow a defendant to choose his own sentence introduces unconscionable arbitrariness into the capital punishment system”

-Judge Harry Pregerson, Dissent in Comer v. Schriro

In November 2022, Aaron Brian Gunches, a prisoner on Arizona’s death row, volunteered to be executed in a pro se proceeding in front of the Arizona Supreme Court, “so that justice may be lawfully served and give closure to the victim’s family.” In his last few days as the former Arizona Attorney General, Mark Brnovich subsequently asked the AZ Supreme Court to grant an execution warrant for Gunches. However, soon after, Mr. Gunches learned about the three botched executions that happened in 2022[1], and he has thus changed his mind about being executed in Arizona specifically.

In early January of 2023, Mr. Gunches filed a new motion to withdraw his request for execution, explaining his concerns about Arizona’s ability to execute people safely and effectively. The new Attorney General’s Office lead by Kris Mayes then filed their motion to withdraw from issuance of death warrant. The victim also weighed in, urging the Court to grant the death warrant and proceed with the execution, citing to the amicus brief by Arizona Attorneys for Criminal Justice (“AACJ”) that the “power to issue and withdraw warrants presents a political question concerning the executive branch’s ability to carry out the execution, upon which [the Arizona Supreme] Court cannot intrude.”[2]

In the meantime, Governor Katie Hobbs announced the pause on all executions and the formation of an independent death penalty review commission to investigate further into the Arizona execution proceedings.  

On March 2, 2023, despite Gunches’ withdraw of his request, the Attorney General’s Office’s motion to withdraw, and Governor Hobbs’ commission on executions, the Arizona Supreme Court nonetheless issued the death warrant for Mr. Gunches, setting an execution date for April 6.

Immediately after, on March 3, Gov. Hobbs vowed that she will not carry out Gunches’ execution even though the Court has ordered so. This was met with opposing forces by not only the victim’s lawyers, but also Maricopa County Attorney Rachel Mitchell, who hold the view that Hobbs does not have the legal authority to ignore the Court’s order of death warrant for Gunches.

On March 8, after learning his execution date was set in a month, Mr. Gunches filed another pro se motion with the Court, requesting to be transferred to Texas for his execution, where “the law is still followed [around executions] and inmates can still get their sentences carried out.”[3] His request to be transferred to Texas was subsequently denied.

Days later, the victim’s lawyer filed a petition with the Court against Gov. Hobbs for a special action ruling so that the execution can be carried out. And on March 22, 2023, the Court ruled that Gov. Hobbs is not compelled to carry out the execution. In other words, the law does not mandate the Governor to act on the death warrant.

The whirlwind of events has since sparked ample discussions around “who decides?” Mr. Gunches clearly still wishes to die, but does he have the power to demand the State to execute him? Does the State? Does the Court? Particularly difficult to solve are the topics on ethical concerns, separation of powers, statutory interpretation, autonomy of personhood, and constitutional issues for both the defendant and the victim.

Courts have historically struggled with how to deal with prisoners’ voluntary request for a harsher sentence, which in most of these situations mean the death sentence. These cases usually involve a fact-intensive inquiry into the defendants’ competency, whether his counsels have been effective, and mitigating evidence at the time of trial.[4]

Mr. Gunches case[5] is of yet another especially tough decision in history – he had consistently waived his right to counsel, mitigation, post-conviction litigation, and now executive clemency, throughout all his legal proceedings. Were his decisions informed? Given that his death sentence was secured mostly because the aggravator produced from a severed trial[6], and that the other aggravator had been thrown out on direct appeal[7], is Mr. Gunches now on death row solely because the attempted murder of a police officer aggravating factor? Does the Court now have to consider once again the fact that Mr. Gunches presented virtually no mitigating evidence for himself? Does it matter that when Mr. Gunches numerously asked to represent himself in various proceedings, the motions were always granted right away?

All these questions are yet to be answered with no clear indication of how it would turn out, and for good reasons – WHO gets to decide issues with such finality? Stay tuned to Mr. Gunches’ case for a possible answer.

Olivia graduated from the University of Massachusetts Amherst with a B.S. in Psychology and Neuroscience. She worked for 3 years in science and medical research before entering law school. She is currently a 3L at ASU O’Connor College of Law and is interested in post-conviction and criminal defense work after graduation. She likes doing origami, yoga, listening to true crime podcasts, audiobooks, and watching documentaries in her spare time, among other things, such as sleeping.

[1] For more information on the botched executions and the serious problems currently present with executions in the State of Arizona, see Erika Galindo’s blog post, Review is Not Enough: A Call for Death Penalty Abolition in Arizona, and the sources within, among others.

[2] Crime Victim’s Single Response to Briefs of Amici Curiae at 5, State v. Gunches & Price (2023) (No. CR-13-0282-AP).

[3] Communication and Participation/Self-Representation, Transfer at 3, State v. Gunches (2023) (No. CR-13-0282-AP);

[4] See Comer v. Schriro, 480 F.3d 960 (9th Cir. 2007); Ryan v. Gonzales, ABA Amicus Brief (arguing that execution should be stayed when defendant cannot effectively assist his counsel in legal proceedings due to lack of competency) (2012); State v. Lafferty(1988) (Mr. Lafferty clearly suffered from mental illnesses that impaired his executive function, but his outbursts were regarded as “lack of remorse” at sentencing); Landrigan v. Schriro (2006) (Mr. Landrigan wrote to the 9th Circuit Court of Appeals and the Attorney General’s Office, voluntarily dropping his all his ongoing legal proceedings; Mr. Landrigan was found to severely lack execution functioning in his brain and was later diagnosed with Organic Brain Disorder).

[5] For more information on the facts of Mr. Gunches’ case and procedural history, see WestLaw or other sources.

[6] Mr. Gunches’ murder and attempted murder of a police officer trials were severed. The latter was tried first and he was convicted. That conviction was subsequently used as an aggravator in his murder trial, even though the police officer was never harmed. On Appeal

[7] On appeal, the aggravator that “the defendant committed the offense in an especially heinous, cruel, or depraved manner” was disregarded.