In 2010, Vikki Valencia’s 24-year-old brother, Triny Rey Lozano, died in an almost unimaginably brutal way. He was shot in the head multiple times, dumped on a remote road outside Phoenix and set on fire.

Valencia saw only one way prosecutors could bring her family justice: The killer should get the death penalty.

Maricopa County prosecutors built a capital murder case against the man they say killed Lozano, Victor Hernandez.

Valencia knew it would take a long time but believed it would be worth it. Over nearly 10 years, she visited the courthouse hundreds of times, frequently missing work to attend hearings where she revisited traumatic images of the crime scene.

“The death penalty was the thing that we wanted most because we thought it was going to give us justice,” she said in a recent interview.

During jury selection, the case stalled because of a potential conflict of interest involving a prosecutor who had previously represented Hernandez. Years later, a second trial followed. As that jury was deliberating, prosecutors dropped the death penalty. Nine years after he was charged with killing Lozano, Hernandez was found guilty and sentenced to life in prison.

Although the Maricopa County Attorney’s Office has historically pursued the death penalty at high rates, its efforts rarely result in a death sentence.

ProPublica and ABC15 Arizona reviewed nearly 350 cases over a 20-year period in which Maricopa County prosecutors decided the crimes warranted the death penalty, and found that 13% ended in a death sentence. In most of the cases, defendants either pleaded guilty and received a lesser sentence or prosecutors changed course, ending their pursuit of the death penalty.

In 76 trials in which Maricopa County juries deliberated a death sentence, 41, or 54%, yielded one.

By comparison, an analysis of death penalty cases initiated in Harris County, Texas, from 2004 through 2023, found prosecutors took fewer cases, 24, to trial and were more successful, obtaining a death sentence 75% of the time, according to figures provided by a local advocacy group. Data over a longer time period also shows that federal prosecutors nationwide have obtained death sentences at a higher rate than in Maricopa County, according to the Federal Death Penalty Resource Counsel Project.

Pursuing the death penalty is among the most consequential decisions that prosecutors make. Each case can be litigated across the tenures of multiple county attorneys and can cost more than a million dollars. In the hundreds of Maricopa County death penalty cases that prosecutors have pursued since 2007, the cost of furnishing the accused with an adequate defense has totaled $289 million. But the outcomes in the county raise questions about the office’s judgment in its pursuit of the ultimate punishment, according to court records and interviews with more than three dozen people including lawyers, former prosecutors, family members of victims and defendants, jurors and experts.

Former County Attorney Rick Romley said there should be a review of capital charging decisions after ProPublica and ABC15 shared the newsrooms’ findings with him. Romley wondered whether prosecutors are seeking death “in the appropriate cases.”

“The jury is kind of a barometer of whether or not you’re doing a good job,” he said. “And quite frankly … if it was a school grade, that’s called an F.”

The office, now headed by Rachel Mitchell, a Republican, declined our request for an interview. A spokesperson responded to written questions, emphasizing that “only one” person in Maricopa County — Mitchell — makes the decision to seek the death penalty and that each case is reviewed throughout the process, as information changes.

Maricopa County’s and the state of Arizona’s handling of the death penalty have been questioned for years. A 2016 report by the now-defunct Fair Punishment Project, a legal and educational research group at Harvard University, cited the county, among other places, as having a history of “overzealous prosecutors, inadequate defense and a pattern of racial bias and exclusion.”

In addition, defense attorneys for a death row prisoner in 2018 petitioned unsuccessfully to the U.S. Supreme Court, claiming that Arizona’s statute was overly broad because almost every murder can be charged as a capital case. And two former prosecutors and appeals court judges wrote in a 2022 law journal article that state officials, rather than individual counties, should make all death penalty decisions to ensure the process is “less arbitrary.”

Maricopa County prosecutors’ handling of death penalty cases is newly relevant as Arizona has resumed executions after a two-year pause. The state, which has 111 people on death row, halted executions in 2014, after Joseph Wood was injected repeatedly over two hours, gasping more than 600 times before dying, according to a reporter’s account. The state executed three people in 2022 but paused after the newly elected Gov. Katie Hobbs ordered a review of the lethal injection process. Hobbs dismissed the retired federal magistrate she had appointed to conduct the review after he concluded there is no humane way to execute people.

Valencia and her family felt the case had put their lives on hold. Looking back, she said it seemed odd that the prosecution, which had pursued death for so long, decided not to once the outcome was close. (Prosecutors declined to comment on the case.)

But as Valencia learned, there’s little transparency around the process in Maricopa County. Although the final decision to seek death is made by the county attorney, each case is vetted by a little known panel, the Capital Review Committee. The county attorney’s office refused to disclose to ProPublica and ABC15 who sits on the panel, how they vote on the cases being considered for the death penalty or even which cases they review.

The office said in a statement that the process ends not with the county attorney’s office but with a trial, which is “all done in public, in an open courtroom.” The office also said that it is successful in prosecuting capital cases and comparisons to Harris County could be misleading because they ignore the “details and intricacies of individual cases.”

Establishing a committee is generally better than individual judgments, but the quality of the decisions depends on the individuals involved, said Robert Dunham, former director of the Death Penalty Information Center, a group that shares data and analysis on capital punishment and frequently highlights issues with the system.

“Anyone who says that they have a fair process and is unwilling to say what that process is, is somebody who doesn’t have a fair process,” Dunham said.

“I Have to Run It by The Man”

When Romley, a Republican, was first elected Maricopa County attorney in 1989, deputy prosecutors in one of the nation’s largest counties decided whether to seek the death penalty on their own.

Among the first changes Romley made was to foster more deliberation. He created the Capital Review Committee to evaluate cases and recommend whether to pursue the death penalty. He still had the final say, but he believed that a group of veteran prosecutors would apply the law more consistently and recommend only cases that warranted the ultimate punishment.

“Seeking the death penalty is a momentous decision that you’ve got to make,” Romley said. “I wanted to make sure that we were ferreting out all the facts, that we made sure that judgment wasn’t being skewed by personal biases.”

Romley served four terms and decided not to seek a fifth, leaving office in 2004. His successor was Andrew Thomas, a Republican attorney and author, who ran as a law-and-order conservative vowing to crack down on illegal immigration and impose tougher sentences. After two years, Thomas had nearly doubled the number of death penalty prosecutions, earning Maricopa County the distinction of seeking death more than almost any other jurisdiction in the nation.

Critics said Thomas sought the death penalty for crimes that didn’t warrant it — including a case of vehicular homicide. The defendant in that case, David Szymanski, had a blood-alcohol content nearly twice the legal limit and cocaine in his system when he drove the wrong way on a freeway and killed a 22-year-old man.

A police review found that officers had violated department policy while pursuing Szymanski. Thomas relented more than a year later, and the Capital Review Committee recommended the capital charge be withdrawn. Szymanski pleaded guilty to second-degree murder and was sentenced to 22 years in prison.

The victim’s mother told the Arizona Republic, “We’ve never wanted the death penalty.”

Kenneth Everett, who was a defense attorney on capital cases for the Maricopa County Office of the Legal Advocate during Thomas’ tenure, told the American Bar Association’s ABA Journal in 2010 that it was clear decisions on the cases were made solely by Thomas. “When I begged for a deal, all of the prosecutors would say, ‘I have to run it by the man,’” he said. “Thomas certainly had the ultimate power. And if he said no, you were going to trial. And he usually said no.”

The Arizona Supreme Court convened a task force to address case delays amid a shortage of qualified capital defense attorneys.

Thomas responded to criticism of the delays by blaming defense attorneys for drawing out proceedings and the courts for failing to enforce speedy trial rules. He wrote in an Arizona Republic opinion piece, “I’ve sought the death penalty in appropriate cases knowing juries make the ultimate decision and believing they should have this option.”

Thomas won a second term but resigned in 2010 to pursue an unsuccessful bid for state attorney general. He was later disbarred for misconduct and political prosecutions of county officials. Thomas, who did not respond to requests for comment, said at the time that he was “working to fight corruption.”

After Thomas’ resignation, the Maricopa County Board of Supervisors appointed Romley to serve out the term. Back in his old job, Romley reviewed the 120 capital cases the office was pursuing at the time. He decided not to seek the death penalty in 11 of them, including a case in which a 4-month-old child was found dead at an in-home day care. The medical examiner had concluded the child died of blunt force trauma, but Romley said he brought in medical experts who disputed that and found the injuries the child suffered could have been caused by an illness.

In court minutes of a hearing to drop the death penalty in the case, the Capital Review Committee is noted as having voted 8-0 to dismiss the case, which was never refiled. But the weight of the charge on the defendant, Lisa Randall, is evident in court documents. Over the three years she was in and out of jail, her marriage fell apart and she lost her house, according to court documents. Randall couldn’t be reached for comment.

“Once you allege death, the whole game changes,” Romley said. “So many more resources go into that particular case.”

“They Should Show Some of the Bravery That They Expect Us to Show”

Once a prosecutor decides to seek the death penalty, the stakes rise. The courts and victims’ families face a lengthier process, and jurors can face intense scrutiny.

The court appoints two defense lawyers, along with an investigator and a mitigation specialist. (In other cases, defendants have only one lawyer.) The defense is also given more time to prepare, to allow for an examination of the defendant’s background to find sympathetic factors that could mitigate a death sentence.

Capital trials consume more time because they consist of three parts: A jury first decides if the defendant is guilty; then jurors consider aggravating circumstances that could make the defendant eligible or ineligible for a death sentence. Finally, the jury decides if the sentence should be death or life in prison.

It’s unclear how much the Maricopa County Attorney’s Office spends prosecuting capital cases. When ProPublica and ABC15 asked the office for a breakdown, a spokesperson said that the office doesn’t track spending on death penalty cases.

But since 2007, the county has spent nearly $289 million on defense for capital cases. Last year, the county spent $26 million, more than any year since 2007, according to the Maricopa County Office of Public Defense Services.

In Oklahoma, a study released in 2017 found that capital cases cost, on average, three times more than noncapital cases.

Jodi Arias made headlines in 2013 when she was convicted of killing her ex-boyfriend. Prosecutors sought the death penalty twice, and jurors deadlocked both times. Arias was ultimately sentenced to life in prison. The two trials cost $3.2 million, including the defense and prosecution, according to officials at the time.

During the 20 years examined by ProPublica and ABC15, juries in 35 cases either voted for life, deadlocked, determined the cases didn’t qualify for death or found the defendant not guilty. In 41 cases, jurors recommended the death penalty.

Frank Baumgartner, a University of North Carolina political science professor, was surprised Maricopa County juries disagreed with prosecutors 46% of the time in capital cases. Prosecutors would save taxpayers money by exercising more discretion over which cases they pursue, Baumgartner said. They also appear to be out of step with public opinion in the county, given that juries disagree with them so frequently on the death penalty. “They’re not in sync with their local community,” he said.

People who served on capital juries in the county told ProPublica and ABC15 that they had traumatic experiences. During the selection process, potential jurors are asked personal questions in open court, making them feel vulnerable. Some have had their identities revealed by jurors who disagree with them.

A juror in a high-profile Maricopa County murder case who asked not to be named because of safety concerns called the experience “one of the worst of my life.” Once the juror learned it was a death penalty case, the stress triggered intense stomach pain. “It’s the highest penalty in the land, and I don’t think that it should be applied lightly,” the former juror said.

Given what jurors go through, prosecutors should be transparent about their decision-making, the juror said.

“They should show some of the bravery that they expect us to show,” the former juror said of the secretive committee. “You ask us to do this, to put our life on hold, to go through this, not share it with anybody. Then show some of the bravery that you hold us to, and be accountable like we would be accountable if we were caught not following any of the rules.”

In 2019, Myla Fairchild served as a juror in a case against the man accused of murdering Gilbert police Lt. Eric Shuhandler, who was killed after pulling over a pickup truck. Christopher Redondo, a passenger in the truck, shot Shuhandler in the face, setting off a 50-mile chase, prosecutors said. Fairchild said she voted against the death penalty because of Redondo’s mental capacity and long history of mental illness. Redondo was convicted of murder and sentenced to life in prison. Afterwards, frustrated jurors told the media Fairchild’s name.

She wasn’t afforded the same privacy as the prosecutors on the review committee who recommended the death penalty in the first place, she said.

“You’re not protected,” she said.

“A Total Disservice”

ProPublica and ABC15 asked the largest prosecutorial offices in Arizona and across the nation how they decide whether to seek the death penalty. The newsrooms found that no two counties handle decision-making the same way, but Maricopa County is an outlier for obscuring nearly every aspect of its committee’s work.

The ACLU sued the Maricopa County Attorney’s Office in 2019 for access to the committee’s membership and other records. Jared Keenan, the American Civil Liberties Union of Arizona’s legal director, said the organization considered the records important to the public’s understanding of the death penalty.

“Prosecuting agencies have an incredible amount of power, and that power is at its height when they make life-and-death decisions,” Keenan said. “The public needs to know who is involved in making those decisions to be able to ensure that those decisions are made responsibly, constitutionally, ethically.”

The county opposed releasing the information. “They were fighting to keep this specific information from the public for years and years,” Keenan said. A judge did not order the county to release the committee records to the public.

At ProPublica and ABC15’s request, the county attorney’s office shared a policy document listing the composition of the Capital Review Committee but said the document is “significantly out of date.” It listed as committee members: the deputy chief of the Criminal Division; the division chiefs from the Capital Litigation Bureau, Major Offenders Division and Special Victims Division; and the Community Based Prosecution Division chiefs. The policy allows the county attorney to designate other committee members.

In a statement, the county attorney’s office reiterated that Mitchell makes the final decision after considering a wide range of information.

Still, the decision can feel opaque to victims’ family members.

When prosecutors sought the death penalty against Octavia Rogers in the killing of her three young children in the summer of 2016, they went against the family’s wishes, according to Rogers’ aunt, Sherry Spooney. Spooney and her family had lost three young relatives in the killing and didn’t want to lose Rogers to the death penalty, too. “What would it solve? How would it help the situation?” she said.

Prosecutors never spoke to the family about how they arrived at their decision, Spooney said.

The Maricopa County Attorney’s Office said it reached out to the family.

Spooney called their secrecy “disheartening” and said it caused her to wonder if the office had its own agenda in pursuing the death penalty. “It’s a total disservice, to not just the family, but the victims of the family. And in this case, we’re both, we’re one and the same, and if they’re going to make decisions for someone else, it should be known.”

Last year, after Rogers was found incompetent to stand trial, she pleaded “guilty except insane,” meaning she did not know at the time of her crime that the act was wrong. Rogers is being held at the Arizona State Hospital.

Valencia recalled that when the case against her brother’s killer was delayed, she initially blamed defense attorneys for dragging out the proceedings, but the committee’s secrecy was also contributing to the delay. Attorneys for Hernandez, the defendant, had discovered a member of the Capital Review Committee had a potential conflict of interest: A former defense attorney for Hernandez in an unrelated case had since become a prosecutor and was on the committee that voted to reject a plea deal for Hernandez. (The plea deal included the noncapital case as well.)

Prosecutors fought for nearly three years to keep the committee’s membership and its votes secret in a case that reached the Arizona Supreme Court. A judge eventually determined there was no conflict of interest in the Hernandez case.

Years later, when prosecutors withdrew the death penalty charge against Hernandez, Valencia said she agreed with the decision even though she’d once thought it would be the only just outcome.

“It took such a toll on our family, at that point, I was just ready for it to be done,” she said.