Judge sanctions defense attorney in Tucson slain-siblings case

2008-07-17T00:00:00Z Judge sanctions defense attorney in Tucson slain-siblings caseBy Kim Smith Arizona Daily Star Arizona Daily Star
July 17, 2008 12:00 am  • 

The Pima County public defender assigned to represent Christopher Payne in his death penalty murder trial was sanctioned $250 this morning for missing one deadline and he was given 48 hours to make another, unrelated deadline.

Authorities believe Payne, 30, and his girlfriend, Reina Gonzales, 24, killed Christopher's oldest two children, Ariana, 4, and Tyler, 5, sometime between March 9, 2006, and Sept. 1, 2006.

Pima County prosecutors hope to convict the pair of first-degree murder and if successful, intend to seek the death penalty for both.

Before prosecutors can seek the death penalty against defendants, judges must ensure that the defendant is not mentally retarded or incompetent.

If defense attorneys aren’t sure about their client’s mental status, they must have them evaluated by qualified doctors. However, if they don’t believe their mental status is in question, the defendant must sign a waiver.

Gonzales’ attorneys are in the process of trying to prove she is mentally retarded and ineligible for the death penalty, but Assistant Pima County Public Defender John O’Brien announced in court several months ago that Payne was waiving the tests.

Because Payne would rather stay at the jail than appear in court, Judge Richard Fields gave O’Brien until Thursday to obtain a written waiver from Payne.

On Thursday, however, O’Brien told Fields he can’t ask Payne to sign such a waiver until he is confident the doctors who are contracted to perform the evaluations are qualified.

The defense attorney explained he just recently became aware of potential problems with the doctors’ qualifications, but he hasn’t had the chance to file a motion asking for a deadline extension. He was out-of-state last week and his return flight Sunday was delayed several hours, O’Brien said.

Fields ordered O’Brien to pay a $250 sanction by 5 p.m. Thursday and to file the waiver by 10 a.m. July 24.

As for the doctors’ qualifications, Fields said, “If you have a motion to file, file it.”

Fields also took exception to O’Brien’s explanation for why he has not yet given prosecutors the “discovery” or evidence he intends to use to defend Payne.

Prosecutors filed their list of witnesses and exhibits in June 2007 and they indicated they intend to use the evidence presented during the guilt phase of the trial during the penalty phase, if there is one.

O’Brien argued the law says prosecutors must provide him more information than that, especially since they will be attempting to prove Payne’s actions were “especially cruel, heinous and depraved.”

Deputy Pima County Attorney Susan Eazer said she met the requirements of the law and doesn’t intend to present any other additional witnesses or evidence during the penalty phase.

The judge told O’Brien he should have brought up the issue prior to his deadline 60 days ago.

O’Brien insisted he doesn’t have to provide the prosecutors his discovery until he receives all of theirs and he doesn’t believe he has received it.

Fields ordered O’Brien to give the prosecutors all of his evidence within 48 hours.

If O’Brien disagrees with him, Fields told him to file an appeal with the Arizona Court of Appeals.

After the hearing, O’Brien said he didn’t know if he would file an appeal.

Ariana’s remains were found Feb. 18, 2007, stuffed inside a plastic trash bag, a designer bag and a sealed plastic tub. Tyler’s body has never been found, but police believe he is dead as well.

An autopsy showed that in the days and months leading up to her death, Ariana Payne had half of her ribs and her right shoulder broken. She also suffered a fracture to one of the vertebrae in the middle of her back, at or near the time of her death.

Gonzales’ trial is scheduled for Oct. 7.

Payne’s trial is set for Jan. 27.

Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Activate
Get weekly ads via e-mail

Follow the Arizona Daily Star