Former head of Arizona's death penalty review speaks out following dismissal by Gov. Hobbs

PHOENIX - Executions are set to resume in Arizona, and days after being dismissed from a death penalty review by Governor Katie Hobbs, a retired judge is telling his side of the story.

Here's what to know.

When will executions resume in Arizona?

Executions will resume in Arizona when the state receives a death warrant from the state's Supreme Court. The state will also have to carry out the death warrant.

On Nov. 26, a spokesperson with the Arizona Attorney General's Office said that Attorney General Kris Mayes will seek an execution warrant from the Arizona Supreme Court for Aaron Brian Gunches. The spokesperson noted that the AG indicated in May that executions would resume by early 2025.

Who is Aaron Brian Gunches?

Aaron Gunches was sentenced to death for killing his girlfriend's ex-husband, Ted Price, in 2002.

Per our previous report concerning Gunches, the victim's body was found in a desert area. Gunches later pleaded guilty to kidnapping and killing Price and to the attempted murder of a DPS trooper near the Arizona - California border.

Gunches was originally sentenced to death in 2008, but in 2010, the Arizona Supreme Court found an error in the sentencing proceeding, and remanded Gunches’ case for new sentencing. He was sentenced to death again in 2013.

In November 2022, Gunches filed a request for his own death warrant with the state's Supreme Court, but he later withdrew that request, stating that he did not know that Mayes, who won election for Arizona Attorney General that same month, had stated her intentions of "pausing" executions in Arizona.

After she took office, Mayes tried to withdraw a request for Gunches' death warrant that was filed by her predecessor, Mark Brnovich. The court, however, refused the request. While a death warrant was ultimately granted, Governor Katie Hobbs said her administration would not carry out an execution.

Why were executions put on hold?

Executions were effectively paused during a review into various aspects of how Arizona carries out executions. The review was ordered by Gov. Hobbs.

The review looked into various things, including Arizona’s procurement process for lethal injection drugs and lethal gas, execution procedures, the access of news organizations to executions and the training of staff to carry out executions.

Prior to 2022, Arizona had a nearly eight-year execution hiatus that was brought on by criticism that a 2014 execution was botched, in addition to difficulties experienced in getting execution drugs.

In November 2024, we learned that the review fell apart.

Why did the death penalty review fall apart?

In a letter issued by Gov. Hobbs to retired U.S. Magistrate Judge David Dunkin, Gov. Hobbs said Dunkin's review "faced repeated challenges," and that she no longer has confidence that she will receive a report from Dunkin "that will accomplish the purpose and goals of the Executive Order" that she issued.

In the letter, Gov. Hobbs wrote that early drafts of Dunkin's review have called into question Dunkin's understanding of both Hobbs' executive order for a list of recommendations to be produced for improving the Arizona Department of Corrections, Rehabilitation and Reentry's execution process, as well as the actual scope of work Dunkin was hired to perform.

"For example, you recommend that ADCRR conduct executions by firing squad (a method not currently authorized by Arizona law), despite the Executive Order’s direction to focus on procurement, protocols, and procedures related to carrying out an execution under existing law," read a portion of the letter.

The letter, which was dated Nov. 26, also states that ADCRR has "undertaken a comprehensive review of prior executions and has made significant revisions to its policies and procedures."

Officials with a group named Death Penalty Alternatives for Arizona have released a statement on Gov. Hobbs decision, which reads:

"More than two years ago, the governor promised a thorough review of the state’s deeply flawed death penalty process, acknowledging its systemic issues. Instead, she has walked back on that commitment, ignoring unresolved concerns about botched executions and the lack of proper oversight within the system."

What is the firing squad?

According to the Death Penalty Information Center, when a death row inmate is to be executed by firing squad, they are typically bound to a chair with leather straps across his waist and head, in front of an oval-shaped canvas wall.

The website states that after a doctor locates the inmate's heart and marks it, five shooters will aim and fire at the prisoner. According to the Associated Press, a blank cartridge is loaded into one rifle without anyone knowing which. That’s partly done to enable those bothered later by their participation to believe they may not have fired a fatal bullet.

Per the Death Penalty Information Center's website, firing squad was most recently used in Utah, in 2010.

How many states use firing squad as a method of execution?

In 2023, the Associated Press reported that Idaho, Mississippi, Oklahoma, South Carolina, and Utah allows for execution by firing squad. 

The same article also notes that firing squads have never been a predominant method of carrying out civilian death sentences and are more closely associated with the military, including the execution of Civil War deserters.

Dunkin said he was shocked by sacking

On Nov. 30, we sat down with Dunkin to learn more about his findings.

"I was simply asked to do three things: We had a history of botched executions in Arizona. Figure out why, figure out if it can be done properly. Increase transparency," Duncan siad.

Dunkin said he spent nearly two years reviewing Arizona's use of lethal injections, and it led to this conclusion.

"Early on, I thought lethal injection would work," said Duncan. "The more I learned about it, I learned that that was a false hope."

A draft of Duncan's finding was released after Gov. Hobbs announced she had lost confidence in him. Duncan said the release of the draft, as well as his dismissal from the review, shocked him.

"To me, it was nothing I have seen in my nearly 40-year legal career, and certainly nothing I saw in the worst behavior of lawyers before me when I was a judge for 17 years, so I was very disappointed," said Duncan.

Duncan said he was denied access to execution "dry run"

Duncan said he wonders if the state simply did not like what he was telling them about their method of execution.

"I can imagine maybe political winds change, that that could have happened," said Duncan. "Maybe I was telling people what they didn't want to hear. I mean, one of the things the Governor said in her letter is that she was satisfied with the investigation that Dr. Thornell had conducted internally with respect to the ability to proceed with an injection. The problem with that is that's an internal investigation. It's exactly the opposite of an independent review."

The Dr. Thornell Duncan referred to is the Director of the Arizona Department of Corrections, Rehabilitation & Reentry, Dr. Ryan Thornell.

Duncan said he was denied access to how Arizona conducts executions. When he asked to see a dry run, he was told no because of concerns he would reveal 'identifying information; about the executioners.

"I would never reveal their confidentiality, and so I said 'that's preposterous,' that that's the reason that you won't let me talk to them and won't let me watch a dry run, and they said they did them four times a year, and I just wanted to see one so that I could make comments and observations. They said no," said Duncan.

Duncan also asked for tax documents after a doctor was paid $60,000 in cash for three executions. Again, the state said he didn't need to know.

"I then wrote the lawyer for the department of corrections and asked, do you have any records that contradict that, that you complied with the law and issued a 1099 for this for this payment? I received no response from the lawyer from the associate director of the department of corrections. The next response that I received from the state of arizona was the letter from governor hobbs firing me."

Duncan reiterates suggestion of using firing squads for executions

In his draft, Duncan concludes that lethal injection is too flawed, and suggested using firing squads instead.

As mentioned above, Gov. Hobbs said that wasn't an option, but Duncan doubled down on his thoughts, and wants to give the option to voters.

"It is a very quick death, and it is one that is probably the most humane of it," said Duncan. "It also has the least botch rate. The botch rate for lethal injection is 7%."

Are firing squads a more humane method of execution?

Per the AP, some people, including Supreme Court Justice Sonia Sotomayor, believe that firing squads are more humane. That idea is based on expectations that bullets will strike the heart, causing immediate unconsciousness as the inmate quickly dies.

"In addition to being near instant, death by shooting may also be comparatively painless," Sotomayor wrote in a 2017 dissent.

Sotomayor's comments came in the case of an Alabama inmate who asked to be executed by firing squad. A Supreme Court majority refused to hear his appeal. In her dissent, Sotomayor said lethal drugs can mask intense pain by paralyzing inmates while they are still sentient.

"What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet," she wrote.

Some, however, say painless deaths by firing squads are not guaranteed. Inmates could remain conscious for up to 10 seconds after being shot depending on where bullets strike, said anesthesiologist Joseph Antognini, and those seconds could be "severely painful, especially related to shattering of bone and damage to the spinal cord."

Others note that killings by firing squad are visibly violent and bloody compared with lethal injections, potentially traumatizing victims’ relatives and other witnesses as well as executioners and staffers who clean up afterward.