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Arizona governor to high court: You can't make me execute death row inmate

Victim's sister has asked state Supreme Court to order Katie Hobbs to enforce death penalty. Governor's lawyers say an execution isn't even possible right now.

PHOENIX — Gov. Katie Hobbs' lawyers said the Arizona Supreme Court can't order her to put convicted murderer Aaron Gunches to death. 

Even if the court could do that, they said, Hobbs' Department of Corrections isn't up to the task right now. 

The Democratic governor's apparent defiance of the high court's warrant of execution came Wednesday in her lawyers' response to a victims' rights group that argues Hobbs is legally bound to act.

"Neither the governing statute nor any other source of law impose such a clear and mandatory legal duty," argued lawyers for Hobbs and her new corrections director, Ryan Thornell. 

The lawyers went on to say the court "cannot compel what is not possible."

"Serious questions exist as to whether the department could constitutionally and legally perform an execution on April 6, if it could perform one at all... Put simply, (the Department of Corrections) currently lacks the institutional knowledge or ability ... to competently carry out an execution."

Republican Maricopa County Attorney Rachel Mitchell has filed an amicus brief supporting the petition by Arizona Voice for Crime Victims, which represents the sister of Gunches' victim. 

"No law allows the governor to unilaterally suspend executions," Mitchell's brief said.

Mitchell noted that the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, told the Associated Press that Hobbs has "discretion for situations like this, where the governor has expressed legitimate concerns because of the problems with the (lethal injection) drugs, the qualifications of the executioners and staffing at the Department of Corrections necessary to carry out executions."

In office less than three months, Hobbs paused executions two weeks ago pending a review of the state's death penalty procedures and equipment.

The day before, the Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The Gunches case straddles two administrations. 

Republican Attorney General Mark Brnovich, who reopened Arizona's death chamber last year after an eight-year hiatus, initiated the execution process late last year.

Hobbs and the new Democratic attorney general, Kris Mayes, inherited the case when they took office in January. 

Gunches was sentenced to death row in 2004. He was convicted of killing and kidnapping his girlfriend’s former husband. The bullet-riddled body was found near the Beeline Highway.

Gunches has changed his mind at least twice on whether he wants to be executed.

Last week, he asked the Supreme court to "transfer him to the State of Texas, where the law is still followed and inmates can still get their sentences carried out."

The court denied the motion.

The high court has put the case on a fast track. It will have to decide first whether to accept the petition by the victims' rights group. 

Mayes is expected to file her response on Thursday, the court-imposed deadline for all briefs in the case.

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