Court ruling means killer may evade death penalty - East Valley Tribune: Public Safety

Court ruling means killer may evade death penalty

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Posted: Saturday, August 21, 2010 1:00 pm | Updated: 5:44 am, Mon Aug 23, 2010.

A man convicted in the brutal 1989 death of a Tucson hitchhiker with get another chance to escape the death penalty.

In a unanimous decision, the 9th U.S. Circuit Court of Appeals said Harold Higgins did not properly investigate the background of David S. Detrich to see if there were factors which a jury could have considered when deciding if she should be executed or instead sentenced to life behind bars.

The judges said Higgins devoted little time to that work, which courts have repeatedly ruled is an attorney's obligation in a death penalty case. They also said that he did not hire an investigator trained in looking for "mitigating evidence'' and he didn't even ask the investigator he had to seek out the kind of details that might have resulted in a sentence of life imprisonment.

In issuing the ruling, the appellate court sent the case back to Pima County Superior Court for a resentencing hearing. But the judges said if prosecutors are not interested in pursuing the case, Detrich will automatically be sentenced to life behind bars.

Pima County Attorney Barbara LaWall said she will assign a prosecutor to go back through the records of the case and present the facts to her office's "capital case panel'' which will decide whether to again seek the death penalty or end the court fights and settle for the life term.

This is actually the second time the case has been sent back to the trial court. In 1994 the Arizona Supreme Court tossed the entire conviction, ruling that the judge did not give the jury proper instructions.

Friday's ruling leaves intact the second conviction, setting aside only the penalty.

According to court records, Detrich and co-worker Alan Charlton were driving from Benson to Tucson on Nov. 4, 1989. There, the pair picked up Elizabeth Souter, hoping she might help them find cocaine. The three bought some drugs and drove her home.

Detrich then 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 half-naked body was found in the desert several days later with 40 stab wounds.

Charlton was convicted separately and received 10 1/2 years.

In Arizona, all trials where a prosecutor seeks the death penalty are divided into two phases. The first involves innocence or guilt. If there is a conviction, then the jury hears evidence and decides the person's fate.

Under Arizona law, the jurors have to determine there was at least one "aggravating factor,'' such as whether the murder was committed for money or the killing was in an especially heinous or cruel manner. Then they decide if there are sufficient factors to mitigate against the death penalty.

In this case, appellate Judge Richard Paez wrote, Higgins did not even begin to look for mitigating factors until after the conviction and just two weeks before the sentencing hearing. All totaled, the court said, Higgins spent just 10 1/2 hours on the penalty phase.

Paez said there were, in fact, factors that might have convinced a jury to spare Detrich. These include abuse by his step-mother, alcohol abuse encouraged by his step-father at a very young age, a prolonged custody battle between his parents, drug abuse by his mother and frequent absences from school.

And Paez said Higgins was at fault for failing to consult a mental health expert.

Higgins told Capitol Media Services he did not recall the details of the case and did not wish to comment.

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