PHOENIX — Attorney General Mark Brnovich wants the U.S. Supreme Court to rule that prosecutors are entitled to multiple attempts to convict someone of first-degree murder even after a jury effectively has found the charge has no legal merit.
In briefs filed with the high court, Brnovich does not dispute that the first jury who heard first-degree murder charges against Philip J. Martin could not agree. Instead they found him guilty of second-degree murder, resulting in a 16-year prison term.
That conviction was overturned because the trial judge refused a request by Martin’s attorney to tell the jury about the right to use force in prevention of a crime. That went directly to Martin’s defense that he shot his neighbor, who was on Martin’s Golden Valley property, because he feared for his own safety.
At a new trial, prosecutors once again brought up the first-degree murder allegation, this time with jurors agreeing and Martin being sentenced to life behind bars.
But the Arizona Supreme Court in August tossed that conviction, ruling that second trial amounted to “double jeopardy,’’ with Martin put on trial twice for the same offense. Now Brnovich wants the U.S. Supreme Court to rule the Arizona justices were wrong.
Brnovich is telling the justices that the law makes it clear that when there is a “hung jury’’ that prosecutors are free to retry a case on those same charges.
But Arizona Justice Clint Bolick, who wrote the decision for the state Supreme Court, said this isn’t that kind of case.
He said jurors did, in fact, reach a verdict. It just wasn’t the one prosecutors wanted.
There is no question but that Martin killed neighbor Steven Jeffrey Schwartz with a single shotgun blast as Schwartz was walking toward Martin’s home.
Jurors in the 2013 Mohave County trial were given a verdict form with three options from which they could select for the first-degree murder charge: guilty, not guilty, or unable to agree. The second part of the form contained two options for second-degree murder: guilty or not guilty.
More to the point, it advised the jury to complete that second section only if it found Martin not guilty of first-degree murder or was unable to agree on that charge.
After about two hours jurors said they could not agree on the first charge but concluded Martin was guilty of second-degree murder.
What upset the whole legal situation is Martin’s attorney getting that conviction overturned, paving the way for a new trial — a trial at which prosecutors once again sought and got a guilty verdict on first-degree murder.
That verdict was overturned by the state Supreme Court in August, paving the way for a third trial — and only on the second-degree murder charge.
Brnovich told the U.S. Supreme Court there’s no need for a third trial and that the results of the second trial and the guilty verdict on first-degree murder should stand.
He said the Arizona justices misinterpreted the law when they voided the results of the second trial. And Brnovich specifically argued that Martin knew there was a risk that he could be retried on first-degree murder when he successfully appealed he appealed the second-degree murder conviction.
“The general rule is that the prosecution is entitled to only one complete opportunity to prove the case,’’ Bolick wrote.
He acknowledged that does not apply in cases when a mistrial is declared because of a “hung jury’’ where they cannot reach a verdict. But Bolick said that wasn’t the case here.
He pointed out that that jurors were told if they could not agree on first-degree murder, something that requires a showing of premeditation, they should consider the lesser charge. They did that, Bolick said, finding him guilty of second-degree murder which is based on someone “intentionally causing the death of another person.’’
What that means, Bolick wrote, is that prosecutors had the opportunity to try to convict Martin on the first-degree murder charge “but was unable to persuade the jury to convict.’’ That, the justice wrote, means that they can’t try again.
Bolick also rejected claims by prosecutors that Martin’s successful decision to appeal his conviction for second-degree murder, the one that was overturned, somehow allows them at a second trial to try again for that first-degree murder charge.
If the U.S. Supreme Court disagrees with Brnovich that would send the case back for a third trial, the one the attorney general wants to avoid.
Jill Evans, a deputy Mohave County legal advocate, told Capitol Media Services earlier this year she believes that a new trial — one where prosecutors aren’t arguing premeditation — gives Martin a better chance of being acquitted based on his claims of self defense and being justified in shooting his neighbor.
The justices have not set a date to decide whether to allow Brnovich to pursue his appeal.