PHOENIX — Convicted murderer David Detrich is going to get yet another chance to escape being put to death.
In an exhaustive ruling Tuesday, the full 9th U.S. Circuit Court of Appeals directed a lower court to review Detrich's claims that his counsel did not do a proper job in the sentencing phase of the trial. The majority concluded he never got a chance to adequately raise those issues on earlier post-conviction appeals.
Tuesday's ruling does not automatically mean Detrich will get another chance to present evidence to a jury, which makes decisions about life or death in Arizona criminal cases. His new attorneys still have to make their case to the lower federal court.
But Attorney General Tom Horne said he disagrees with even giving Detrich another federal court hearing on the issue. Horne said he may appeal to the U.S. Supreme Court.
According to court records, Detrich and co-worker Alan Charlton were driving from Benson to Tucson on Nov. 4, 1989. The pair picked up Elizabeth Souter, hoping she might help them find cocaine. The three bought some drugs and she was driven home.
Detrich became angry at Souter when he discovered he had bought “bad drugs.” Charlton said the trio left the house, with Detrich holding Souter at knifepoint.
Her body was found in the desert several days later with 40 stab wounds, including her throat being slit.
Detrich was convicted, twice — his first trial was overturned because the judge gave the jury the wrong instructions — at least partly on the testimony of Charlton who had entered a plea deal with prosecutors. Detrich was sentenced to death; Charlton was sentenced to 10 1/2 years in prison and was paroled in 1997.
Judge William Fletcher, writing Tuesday's majority ruling, noted that only nine of the jurors concluded the murder was premeditated. The other three instead said Detrich was guilty of felony murder, meaning he was part of a death that occurred during commission of another crime.
Either one makes someone eligible for the death penalty, but Fletcher said the result means only nine believe that Detrich, rather than Charlton, had done the actual killing.
More to the point in this case, the majority said there was evidence that Detrich's trial attorney had not presented all the possible mitigating evidence which, coupled with the possibility that he did not wield the knife that killed Souter, could have caused the jury to conclude he should not be put to death.
Tuesday's ruling was not unanimous. Judge Susan Graber, writing for herself and four other judges, said it was unnecessary to send the case back to a lower court.
Specifically, Graber said the majority ruling “glosses over, dismisses, or ignores substantial evidence”' that there was sufficient evidence for a jury and the sentencing court to conclude not only that Detrich was guilty of killing Souter but that he was subject to the death penalty.
That's also Horne's assessment. He said there is “no reasonable probability” Detrich would have avoided the death penalty even if his trial attorney had done a more thorough job of presenting mitigating evidence.