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Arizona Supreme Court: Trial Court Must Tell Jury Defendant Ineligible for Parole in Death Penalty Phase

by Dale Chappell

The trial court erred by failing to tell the jury that a defendant was ineligible for parole before its decision to impose the death penalty, the Supreme Court of Arizona held November 6, 2017.

A jury found Jasper Rushing guilty of killing his cellmate at the Lewis Prison Complex in September 2010. The evidence showed Rushing “smashed in” his cellmate’s face, cut his throat, and severed his penis before he told guards, “I think I just killed my cellie.” He was charged with premeditated first-degree murder, and the State sought the death penalty. The jury found Rushing guilty of murdering his cellmate in an “especially heinous or depraved manner,” an aggravating factor under Arizona law to allow the death penalty.

On appeal, one of Rushing’s arguments was that the trial court violated his constitutional rights by refusing to instruct the jury during the penalty phase that he was ineligible for parole because his crime was committed after January 1, 1994, making him ineligible for parole under Arizona law.

The U.S. Supreme Court held in Simmons v. South Carolina, 512 U.S. 154 (1994), that when a jury is determining whether to impose the death penalty, “due process requires that the sentencing jury be informed that the defendant is parole ineligible,” the Arizona Supreme Court noted. The possibilities of clemency or a future statute authorizing parole would not change this rule, the Court explained.

When a capital defendant’s “future dangerousness” is at issue and the sentencing choices are death, natural life, or life in prison without parole, the jury instruction under Simmons is required, the Court explained.

The State placed Rushing’s future dangerousness at issue because the prosecutor in her opening statements pointed out that Rushing was currently in prison for killing his stepfather, had gotten into fights in prison, threatened guards, and was found with shanks hidden in his rectum just before murdering his cellmate.

The Court rejected the State’s argument that the Simmons instruction was not necessary because Rushing was already serving a life sentence for murdering his stepfather. The prosecutor told jurors that Rushing received a life sentence for the murder, but mentioned the possibility of release after 25 years.

Because Rushing is ineligible for parole or to be released from prison, the trial court was required to instruct the jury that Rushing would be “parole ineligible,” or to allow Rushing to introduce evidence to that effect, the Court ruled.

Since the trial court failed to do so, Rushing’s death sentence was vacated by the Arizona Supreme Court. The Court remanded the case for a new penalty phase proceeding. See: State v. Rushing, 404 P.3d 240 (Ariz. 2017). 

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Related legal case

State v. Rushing



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