A man who took his 2-yearold daughter into the desert east of Mesa and burned her to death may be spared the state’s death chamber.
In a unanimous decision Tuesday, the Arizona Supreme Court upheld the murder conviction of Shawn Grell in connection with the 1999 incident that resulted in the death of Kristen Salem. But the justices said Grell never got the chance to adequately prove he is mentally retarded, a finding the U.S. Supreme Court ruled last year precludes someone’s execution.
The justices ordered a new sentencing hearing.
"We’ll go back and review the decision and see what needs to be done,’’ said Bill FitzGerald, spokesman for the Maricopa County Attorney’s Office. FitzGerald could not say whether prosecutors again will seek the death penalty.
Court records show Grell took his daughter out of a day care center on Dec. 2, 1999, telling her he was going to take her to see Christmas lights. He later drove to a remote area near Apache Junction, took his sleeping daughter out of the car, laid her on the ground in a drainage ditch and then poured gasoline on her. He then lit a match and flicked it on her.
After he was found guilty without a jury, Maricopa County Superior Court Judge Barbara Jarrett said she found no reason to spare him the death penalty, including claims of retardation.
Supreme Court Justice Rebecca Berch, writing for the unanimous court, said Jarrett followed the law in effect at that time, which made the question of mental retardation just one factor to consider when determining the punishment. But last year’s U.S. Supreme Court ruling made retardation an absolute bar to imposition of the death penalty under the Eighth Amendment provisions prohibiting cruel and unusual punishment.
Grell presented evidence that his IQ scores might qualify him as retarded. But Jarrett accepted arguments by state-paid experts that Grell instead had an anti-social personality disorder and was able to function. Berch said the U.S. Supreme Court ruling "so changed the landscape of death penalty jurisprudence that the trial court simply could not have applied the correct principles during sentencing.’’