‘A violent act in every case': One judge's impossible quest for a humane execution

Yahoo

10-02-2025

Retired federal magistrate judge David Duncan was hired by Gov. Katie Hobbs to examine Arizona's death penalty procedures and make recommendations to improve them. He spent nearly two years doing just that, but was fired shortly after Republicans trounced Democrats in the November 2024 election. In a draft report, Duncan makes clear that lethal injection isn't humane and is "not a viable method of execution." Photo by Scott Kelston for the Arizona Mirror
Is there a humane way to execute murderers? Does anyone care?
In Medieval times, agony and humiliation were the norm. Men and women were publicly beheaded, drawn and quartered, dragged behind horses and burned at the stake for far lesser crimes than murder.
Public hangings persisted in this country well into the 20th century. And just hours into his new administration, President Donald Trump signed an executive order stating that the death penalty is a deterrent to crime.
In recent history, government leaders have worried more whether execution is presentable to the witnesses who are supposed to see how humane it is. And nothing looks more humane than death by lethal injection. If it's done right, it looks as if the condemned person just went to sleep.
Looks like.
If it's done right.
In Arizona, history shows that both of those conditions are questionable.
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Over the last 10 years, there have been problems with the drugs used, problems securing drugs in the first place, problems with getting catheter lines into arms and legs to deliver the killing drugs, problems finding qualified personnel to insert them. More recently, there have been concerns that the primary drug used in executions is not as painless as was thought.
Poorly executed: How Arizona has failed at carrying out the death penalty
Some states have even started reconsidering the firing squad, while Arizona looked for a time to resume using its gas chamber, which hasn't been used since 1999.
Shortly after she took office in 2023, Gov. Katie Hobbs asked retired federal magistrate judge David Duncan to do an analysis of the state's protocols for lethal injection and the gas chamber and make suggestions for improving them in the future.
Duncan has a reputation as the consummate legal nerd, 'driven by fairness and justice,' as U.S. District Court Judge Douglas Rayes said, 'a serious person who understands the gravity of his job and the gravity of the cases in front of him.'
He is oblivious to opposition.
'David has emotional armor like nobody's business,' says his wife, Sally Duncan, herself a retired Maricopa County Superior Court judge.
He is precise.
'I thought he was probably the best person to take on the responsibility,' said Dale Baich, a former federal public defender and legal expert on the death penalty. 'He believes in the process, he believes in the system, and he is meticulous about following the rules.'
The irony of the job was not lost on Duncan. Can execution be humane?
'(T)he ending of a life and overcoming that person's will and biological command to live is by nature a violent act in every case,' he wrote in a preliminary report to Hobbs, 'even lethal injection.'
He took the job anyway, but he was determined to forgo opining about the bigger question of whether the state should be in the execution business at all.
'Some states had blue ribbon commissions asking, 'Should we have a death penalty at all?' that concluded it should be abandoned,' he told the Arizona Mirror. 'And, in all but one, the conclusion was ignored.'
This was an inquiry more limited in scope. It was not a judgment on the death penalty, just a review of how the state carried it out. It was doable, he thought. Perhaps someone would pay attention to his conclusions.
He pored through tens of thousands of documents, did dozens of interviews with lawyers and jailers and medical personnel who had performed executions in the past. He traveled to other states to comb university collections.
Hobbs asked Duncan for an update on his work, and he submitted his summary.
'Lethal injection, while theoretically achievable,' he wrote, 'is in actual practice, fundamentally unreliable, unworkable and unacceptably prone to errors.'
Even a return to the firing squad was more reliable, he wrote, despite being jarring to potential witnesses.
'So, look away,' he told the Mirror of those who didn't want to see it.
Hobbs fired him.
At the end of November, Hobbs wrote a letter to Duncan, noting that firing squad was not permitted under the state constitution and she no longer had confidence in Duncan because he had gone beyond the scope of his assignment.
Political battles were brewing. Trump had just been elected and was extolling his belief in the death penalty. An Arizona Death Row prisoner was demanding to be executed, and a county attorney was helping make his argument, even attempting to force a death warrant herself, though that was hitherto assumed to be beyond her jurisdiction.
However, the Arizona Supreme Court was willing to listen to her argument. Hobbs won't answer questions on the matter. Pundits offer analysis off the record: Rather than risk losing a case that could open the door for county attorneys to cross other jurisdictional lines, it was perhaps more expedient for Hobbs to fire Duncan, hold her nose and execute a man who wants to die anyway. Execution, after all, is the law of the land in Arizona.
Then the best hope would be to pray the Supreme Court refuses to issue a warrant. If not, fingers crossed, hope the execution goes well.
David Duncan, 67, is a larger man than he appears in photos. A solid six-footer, he moves around his house without betraying the fact that his vision is seriously impaired, due to a condition that forced him to retire from the federal bench.
In photos, he is invariably dressed with an old-fashioned formality, favoring suits and bow ties. At home, his hair is uncombed and he wears jeans, but the formality is still there in his speech and his bearing.
Retired federal magistrate judge David Duncan. Photo by Scott Kelston for the Arizona Mirror
He came to Arizona with his family at age two, and has been here since, except for two years when he attended Brown University in Rhode Island. He had to take medical leave because of an inherited disease and came home to Tucson. His father suffered from the same malady and died during that time. So, Duncan continued his studies at the University of Arizona.
There, he met his wife, Sally, who had also come home from college in another state because her dad was ill.
'He was going to be my summer fling,' she says. A friend of Duncan's was interested in dating Sally's twin sister. 'David was her Cyrano,' in connecting the sister to the friend, she said, referring to the Edmond Rostand play about a long-nosed chevalier who helps a friend find the right words to woo a woman that Cyrano himself loves.
Or call it 'When David met Sally.' They've been together for 42 years.
Both graduated from UofA law school. David clerked for a federal judge in Tucson, worked for the prominent law firm of Osborn Maledon and was appointed an assistant U.S. attorney in 1996. Then, in 2001, he was appointed a magistrate judge in the U.S. District Court for Phoenix.
(Sally Duncan, 61, worked for the federal public defender and two local law firms before being appointed to the Maricopa County Superior Court in 2004. She retired in 2019.)
Federal magistrate judges might be compared to commissioners in the Arizona Superior Court, in that they don't have the full range of duties that judges have. They handle preliminary matters in criminal cases but do not take them to trial. They also handle settlement conferences, and if both parties consent, they can try civil cases.
'He is a very fine lawyer and he was a fine judge,' said U.S. District Court Judge Roslyn Silver, who supervised Duncan as the court's chief judge. 'His ethics are as high as he can imagine.'
Silver became chief judge after the death of John Roll, who was killed in the same supermarket shooting that seriously wounded former U.S. Rep. Gabrielle Giffords. Silver says that Duncan was 'an enormous resource' to her in those days after her sudden appointment.
'I always went to David first,' she said.
Andrew Hurwitz is a judge on the 9th U.S. Circuit Court of Appeals and a former Arizona Supreme Court justice. He has known Duncan since before Duncan was an attorney.
Hurwitz recalls the care with which Duncan would treat defendants during initial court appearances, making sure they and their families understood the proceedings against them. After Duncan conducted citizenship ceremonies for immigrants, Hurwitz said, 'He stood at the door and shook everyone's hand on the way out.'
Perhaps Duncan's biggest trial was Parsons v. Ryan, a long-running dispute between the Arizona Department of Corrections, Rehabilitation & Reentry and its prisoners over health care. But in 2018, with his eyesight failing, he felt compelled to retire and turn the case over to Silver.
Hobbs tapped him to be an independent commissioner to analyze the state's lethal injection protocol in 2023.
'Arizona has a history of mismanaged executions that have resulted in serious concerns about ADCRR's execution protocols and lack of transparency,' she said in a press release at the time. 'That changes now under my administration and Director (Ryan) Thornell. A comprehensive and independent review must be conducted to ensure these problems are not repeated in future executions. I'm more than confident that Judge Duncan has the expertise and ability to take on this crucial role.'
Duncan had not handled capital cases over his legal career. He did not even ask advice from his wife, who had presided over capital cases, so that his findings could be his own. He felt he could apply his analytical skills to the task. Not everyone thought it was a dream assignment.
'I didn't understand why he took it,' Hurwitz said. 'But his undertaking this job is consistent with everything I know about him. He's the consummate public servant. He's a Boy Scout.'
It was no surprise when Hobbs and newly elected Attorney General Kris Mayes took office that they declared a moratorium on executions. It's a party-lines thing. President Joe Biden declared a moratorium on federal executions when he came into office in 2021; President Donald Trump rescinded it just last week with a memorandum from his Department of Justice.
Nobody in Arizona comes right out and says that Democrats don't do executions, but the numbers don't lie.
Arizona has executed 40 men since 1992, and all but one of them was executed during Republican administrations. And before that? Capital punishment was temporarily banned by the U.S. Supreme Court in 1972, but came back online in 1976. Still, between 1976 and 1992, there were no executions at all in Arizona, to some extent because of litigation and because many death row prisoners had not exhausted their appeals. And maybe it's a coincidence, but during that time, hard as it may be to believe, all but one of Arizona's governors were Democrats. The sole Republican, Evan Mecham, only lasted one year, and his most significant accomplishment was getting impeached.
There had been booms and busts along the way, periods when executions were not performed because of pending federal or state litigation, and periods when the death house was in demand. Over a three-year span, 1998 to 2000, Arizona executed 14 prisoners. Between 2014 and 2022, Arizona executed no one, largely because of a badly botched 2014 execution that set off more litigation. Then, in 2022, the state executed three prisoners, and had a fourth on deck when Hobbs took office. She let the death warrant run out as Duncan began his work.
'What the executive order boiled down to was essentially three questions,' Duncan says. 'What went wrong in the past? Identify what went wrong, then see if it can be done properly. Are there steps that can be taken so that lethal injection can work in a way that people envision it should work? That's how it works when you go to the vet and the vet puts the dog down; it's seamless every time. Why doesn't it work for people? And the third question is how to increase transparency.'
To be sure, there had been problems, even if they were not always visible to the execution witnesses, victims' families, state officials and journalists. The state switched from gas to lethal injection in 1992 because gas was so horrible to watch, though it is still in state statutes as an option for prisoners convicted before 1992. (It was only used once again, in 1999.)
Under Doug Ducey's administration, the state purchased cyanide to have it on hand in case another prisoner opted for it. Duncan would have nothing to do with it.
'I made it clear to them that, as a Jew, I was not going to ever countenance anything that was associated to dropping cyanide into water and gassing people to death,' Duncan said.
So, on to lethal injection. Arizona has had its mishaps and scandals.
In 2010, when one of the drugs used in executions became unavailable domestically, the Corrections Department illegally imported it in from Europe. The department even shared some of it with the state of California. And though no one was ever charged or prosecuted for the transgression, the Drug Enforcement Agency eventually ordered that the remaining quantities of the drug be destroyed. ADCRR tried to import it again in 2015, but the feds intercepted that shipment at Sky Harbor Airport.
Subsequent drugs also became unavailable for use in executions, resulting in the department using a questionable cocktail of chemicals that left a man gasping on the execution gurney for nearly two hours in 2014. Then-Corrections Director Charles Ryan ordered the executioner to push 15 additional doses of the combo into the prisoner before he died.
That was a problem for Duncan.
'Somebody who is not a medical person should not be making those decisions,' Duncan said. 'But it's a quasi-military operation, the Department of Corrections, so the power and responsibility is vested in the director and his subordinates. The chain of command does not include the medical doctor to make the key decisions. In a strange way, everything is done to divorce the process from medical proximity.'
Duncan questioned the department's current supply of pentobarbital salt, the active pharmaceutical ingredient for the barbiturate pentobarbital. Pento, in short-hand, is unavailable to prisons because pharmaceutical manufacturers will not allow it to be used for executions. So, in 2020, Arizona, other states and the federal government found a supplier of the active ingredients, which then have to be transformed to an injectable form by a compounding pharmacy.
Duncan was shocked to learn that the pentobarbital salts had been delivered to a private residence, and now sit in eight unmarked glass jars in a locked refrigerator, with little to no documentation as to its origins or potency. (Mayes' office recently released a heavily redacted report that supposedly speaks to tests performed in January, supposedly by the Arizona Department of Public Safety.) An attorney at the department told Duncan she had destroyed the relevant documents, which he found peculiar.
And historically, there had been consistent problems setting the catheters to administer the drugs in the prisoners' arms, often resulting in the doctor-executioners performing a surgical cut-down in a prisoner's groin to set a line in the femoral vein.
Duncan interviewed members of the medical teams that had carried out the 2022 executions. One of the staffers told him, 'With each passing minute, the tension was rising in that room' because of the inability to set lines. One of the prisoners even suggested a vein that might — and did — work when the medical team was ready to give up and do a cut down.
Duncan also cited the lack of communication with prison staff in other states that perform executions.
'It's not just the absence of qualified personnel and the absence of good drugs, it's the absence of information exchange,' he said. 'The secrecy that enshrouds every state's procedure with respect to executions precludes best practices from emerging. So, if someone learns a lesson in one state, it's never shared with another.'
He asked if there were tax records of payments to the medical teams. There were not.
The final impasse was when he asked to watch a rehearsal by the newly hired execution team.
'I believed that was critical to my process,' he said, 'because I had learned a great deal about lethal injection. These people who had been hired by the state to do the upcoming executions have never done it before. And I have studied it for two years. I'm not a doctor, but it's possible that I could have brought something to the table.'
The answer was a hard no.
'They said I could do written interrogatories, and I said, 'No, I need to sit across from them, I need to look in their eyes,' and they said, 'You cannot do that because they will not make themselves available for hire if you do that, because they are worried that you will reveal their identities.' I said, 'It's against the law to reveal their identities.'
'To sit across from a federal judge and suggest that the retired federal judge is going to violate the law is a ridiculous notion. And I said, I can't accept that. Then they said I could not watch a dry run for the same reason: that I would create a risk.'
He had seen records of earlier rehearsals, practicing how to handle crowds and parking and seating in the execution chamber, but 'Never practicing what actually goes wrong, and that is the setting of the lines, the administration of the drugs.'
He was asked to summarize his findings, even though his report was not finished.
'…lethal injection is not a viable method of execution in actual practice,' he wrote.
Aaron Gunches
The governor has declined multiple requests from the Arizona Mirror for comment on David Duncan and the death penalty. But the death penalty is written into Arizona law. Political circumstances are more easily changed than the law. And for Katie Hobbs, there was the problem of Aaron Gunches.
In 2002, Gunches killed his girlfriend's ex-husband, Ted Price, by shooting him in the back of the head on the Beeline Highway. He tried to go on the lam, but didn't make it across the state line before he got into a shootout with police. He shot and wounded an officer and was arrested.
He was charged in Maricopa County Superior Court and pleaded guilty to first-degree murder. But prosecutors wanted the death penalty, so he still needed to go to trial. He represented himself, but didn't offer any mitigation, that is, any reason why he shouldn't be sentenced to death. The jury sent him to death row.
Arizona death sentences automatically get reviewed by the state Supreme Court, and the court threw out the sentence because the prosecutor alleged as an aggravator that the crime was cruel and heinous. But the court objected, saying that killing someone instantly from behind, without that person knowing what was coming, did not meet the definition of cruel.
Gunches went back to trial. This time, prosecutors alleged a new aggravator and a new jury sent him back to death row. During his next step in the appeal process, known as post-conviction relief, he fired his court-appointed attorney, dropped the appeal and has not filed one since.
In 2022, he sent handwritten notes to the court asking to be executed. Then-Attorney General Mark Brnovich was willing to oblige him, and the Supreme Court issued the necessary death warrant.
Then Brnovich left office before the scheduled execution date. Hobbs and Mayes came into office and let the death warrant expire. Hobbs declared a moratorium on executions and hired Duncan to do his investigation.
Gunches did not give up his death wish. And Maricopa County Attorney Rachel Mitchell picked up the cause on his behalf and on behalf of the victim's survivors, and asked why she couldn't request a new warrant.
On June 5, 2024, she issued a public statement.
'For nearly two years, we've seen delay after delay from the governor and the attorney general,' it read. 'The commissioner's report was expected at the end of 2023, but it never arrived. In a letter received by my office three weeks ago, I'm now told the report might be complete in early 2025. For almost 22 years, Ted Price's family has been waiting for justice and closure. They're not willing to wait any longer and neither am I.'
It continued, 'The motion filed today specifically asks the Arizona Supreme Court to set a briefing schedule in anticipation of a request by the Maricopa County Attorney's Office for a new warrant of execution. While it is unusual for a county attorney to seek a death warrant, it is also true that each county represents the state in felony prosecutions that occur in Arizona.'
'I believe that as an attorney who acts on behalf of the state, I also can appropriately ask the Supreme Court for a death warrant,' added Mitchell. 'The victims have asserted their rights to finality and seek this office's assistance in protecting their constitutional rights to a prompt and final conclusion to this case.'
Right before Thanksgiving, Hobbs sent a letter to Duncan.
'Your review has, unfortunately, faced repeated challenges, and I no longer have confidence that you will accomplish the purpose and goals of the Executive Order that I issued nearly two years ago. The early drafts of your work have called into question your understanding of the Executive Order and the actual scope of work you were hired to perform. … I therefore write today to inform you that your continued service to the state is no longer necessary.'
Thornell, she told him, had done his own review of his agency's procedures and said they were set to execute Gunches. Hobbs said she found that assessment more acceptable than Duncan's.
In a letter a few days earlier, Thornell detailed the examination he had conducted, including talking to other states and reviewing files. He had instituted new training and found new medical team members.
'As is evident by the scope of these review efforts across the last 20 months, and the extent of the procedural changes implemented, we have systematically reviewed, addressed, and improved the necessary protocols related to the Department's execution process,' Thornell wrote. 'I am confident in the methodology I used in leading this effort and am satisfied with the
outcome. As such, I write to inform you that the Department is operationally prepared to proceed with an execution.'
On Feb. 11, the Arizona Supreme Court will decide whether to issue a new death warrant for Aaron Gunches. If it does, Gunches will be scheduled for execution 35 days later, on March 18.
It is not without controversy. Days before he left office in January, U.S. Attorney General Merrick Garland issued an order to discontinue use of the drug pentobarbital in executions because of mounting evidence that it causes a painful and terrifying death that resembles drowning. The Feb. 5 memorandum from Trump's DOJ even says that, before resuming executions, a 'review should focus on whether the use of pentobarbital as a single-drug lethal injection comports with the Eighth Amendment.' Friend of the court briefs have been filed in Gunches' case to that effect. Other briefs filed allege that the state's drug supply violates state and federal laws.
Gunches is apparently unmoved. So are Hobbs and Mayes — at least they are not commenting except to say that they are moving full speed ahead.
Duncan plans to finish his report, even if the person who commissioned it won't read it. The Corrections Department took away his access to the documents he consulted as he worked on it, so he is unable to properly cite them. He will do what he can from memory.
Sally Duncan said, 'The family motto is, 'Go where the truth leads.' And if you're not willing, don't do the job.'
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