Court Struggles With Death Sentence


The Arizona Supreme Court wrestled with life and death -- and the limits of its own power on Tuesday, before an intent audience of about 400 in the Payson High School auditorium.

The justices weighed a plea to spare the life of Cody James Martinez, based on alleged mistakes by the judge and prosecutors. In intense questioning, the justices seemed to wave aside the claims the prosecutor cheated -- but struggled with whether the high court must defer to even a just barely reasonable jury.


Chief Justice Ruth McGregor of the Arizona Supreme Court invites questions from the 400-member audience at Payson High School auditorium during the high court's first visit to Gila County April 29.

Not even the defense attorney argued that Martinez did not bind, beat and finally shotgun to death Francisco "Cisco" Aguilar in Tucson in 2003. However, defense attorneys argued that prosecutors twisted the evidence to convince the jury to sentence Martinez to death by claiming the motive was robbery instead of revenge against a man Martinez believed to be a child molester.

But prosecutors argued that state law bars the high court from doing anything beyond reviewing death sentences for legal error so long as a "reasonable" jury could conceivably have arrived at the death sentence.

"So it is the state's position that as long as we can conceive that any reasonable person could have reached this verdict, there is nothing to review?" asked Vice Chief Justice Rebecca Berch.

"That was the intention of the legislature," replied attorney Lisa Stover Gard, with the state Attorney General's office

"All we have to conclude is that some reasonable juror could possibly have reached that verdict?" asked Justice Andrew Hurwitz. "Is that meaningful review?"

"It seems clear that it was the legislature's intent to remove the Court's discretion ... but it is not a rubber stamp review," since the Court can consider legal errors that affected the outcome of the trial, replied Stover Gard.

The 400 citizens and high school students, some bused in from Heber, listened quietly to the quick and incisive grilling of lawyers on both sides of the case. The Court will, within the next several months, rule whether Martinez is executed for his crimes, has his sentence changed to life in prison or gets a new trial on the death sentence.

The Supreme Court for the past decade has sometimes held its hearings outside of the downtown Phoenix Supreme Court building, but this week marked the first time the Court has come to either Payson or Gila County.


Laura Geiger attended the Supreme Court session that was held in Payson.

Martinez's case presented the Court with a brutal and drawn-out murder and hard questions about how much motive matters in determining which tiny percentage of murderers actually receive the death penalty.

In Martinez's case, defense attorneys argued that the jury acted unreasonably when it decided that Martinez committed the murder to steal a handful of small items, like a gold chain and some CDs. Instead, defense attorneys argued that Martinez, who was himself allegedly sexually abused as a child, committed the murder in a simmering rage after learning Aguilar had allegedly sexually molested the cousin of another member of the group Martinez and Aguilar both ran with.

However, state law also allows for a death sentence when a murder is committed during a robbery or kidnapping or committed in an especially "depraved" or "cruel" manner. The jury decided Martinez qualified for the death sentence on both those grounds, because Martinez and four friends beat and taunted Aguilar for hours before finally killing him in the desert. Several men kicked, beat and stabbed him, before Martinez finished him off with two blasts of a shotgun. They then piled trash on the body and set it on fire to hide evidence. However, the fire itself drew the attention of police, who stopped them as they left the scene.

The jury decided Martinez should die because he committed the murder for the money and also in an especially cruel fashion. And after hearing the defense's pleas for mercy in the sentencing phase, the jury also decided to impose a death sentence despite Martinez's alleged history of childhood sexual abuse and the rage allegedly triggered by his belief that Aguilar was a child molester.

Defense attorney S. Young cited another sentence the Supreme Court had overturned after a prosecutor misstated the facts of the case to a jury.

"But in that case, what the prosecutor did was central to the prosecution," said Berch, who, like the other judges, had read hundreds of pages of legal briefs and trial testimony, in which lawyers had cited hundreds of other cases to support their arguments.

Justice Michael Ryan asked, "Does this pose a fundamental error?" referring to a legal mistake that affects the outcome of the trial.

"Yes it was," insisted Young. He conceded his client's guilt and said that the errors he claimed had to do with the death sentence, not the guilty verdict.

In fact, many of the justices' questions focused on the issue of whether the Court was free to decide whether the jury's decision was reasonable.

The questions of several justices seemed to suggest that blaming the murder on robbery for a handful of stuff strained the "reasonable" juror standard.

But even if the Court tossed out the robbery finding, the cruelty charge would stand. Moreover, the state law might bar the judges from substituting their judgment for the jury's in deciding whether Martinez's history of abuse and belief Aguilar had abused a child should mitigate the death sentence.

The justices also sharply questioned one instruction the trial court judge gave to the jury. The Court had thrown out the instruction in previous cases because it could coerce a holdout juror.

Young essentially challenged the Court to interpret that law in his client's favor, "The statute tells you to review all cases that are excessive," he said.

Several justices seemed ready to discard the robbery basis for the death sentence, but less so the charge of cruelty.

"Didn't you agree there was sufficient evidence on cruelty?" asked Chief Justice Ruth McGregor of the evidence that the four men abused Aguilar for hours before they finally killed him.

"Can we apply the standard of the ‘reasonable juror?'" asked Justice Scott Bales.

"Doesn't that just result in our substituting our judgment for the jury's judgment?" asked Justice McGregor.

"I have trouble with your client taking justice into his own hands. You can't be saying that he was justified," said Justice Hurwitz.

Young replied that the behavior of the victim and the child molestation allegations didn't make Martinez innocent -- but did make a death sentence unreasonable.

"If we were the sentencing body," said Hurwitz, "you could make a good argument that we look at this and say it's not enough" to impose the death penalty.

But that brought the justices right back to the laws limiting the high court's review.

After two hours of such absorbing, intricate arguments on two different cases, the high court ended the hearing and took questions from the audience.

One high school student asked them each to describe their "hardest case."

Everyone agreed the death penalty cases caused them the most agony.

"All the death penalty cases are difficult," said Bales. "The circumstances of the victim's lives and often of the defendant's lives are very bad. Those are the hardest cases at the end of the day."

"A lot of these defendants did horrible things," agreed Justice Ryan, "but they also had horrible backgrounds. And even so, you can't understand why they did it."

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