Trying a death-penalty case without a jury is practically unheard of in Arizona.
Why did Maricopa County forego one for the ugliest murder trial in decades? Because it was too ugly.
Photo by Peter Dazeley | Getty Images
Editor’s note: This story contains descriptions of two particularly gruesome murders.
Bryan Miller, the so-called Canal Killer, brutally murdered two young women in the early 1990s, then lived quietly for 22 years until a DNA hit led to his arrest.
On June 7, he sat hunched in a chair at the defendant’s table in a Maricopa County Superior courtroom as a judge sentenced him to death twice. From the gallery, all that could be seen of the 50-year-old from behind was his bald spot. A pandemic-era face mask hid his emotions.
In the United States, the death penalty is supposed to be reserved for the “worst of the worst” murders and Miller’s crimes fit that description.
“The heinousness and depravity surrounding these two young women’s murders was clearly beyond the pale,” Judge Suzanne Cohen read from excerpts of her 26-page verdict.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
In November 1992, Miller stabbed Angela Brosso, 22, as she rode her bike along the Arizona Canal near I-17 in North Phoenix. She died quickly, but Miller wasn’t finished. He sliced open her torso and tried to saw her body in half. Then he decapitated her and threw her head in the canal.
Nearly a year later, Miller attacked 17-year-old Melanie Bernas as she rode her bike along the same canal. He stabbed her to death, carved letters into her chest before dressing her in a turquoise jumpsuit and dumping her body into the water.
He sexually abused both bodies.
Detectives linked the two crimes immediately. They dominated the headlines, but the murders remained unsolved for 22 years. Miller was not arrested until 2015, when forensics tied crime scene DNA to Miller’s relatives who had used commercial genealogy apps. Once again, the crimes made the front page of newspapers and led broadcasts on the evening news.
Miller didn’t go to trial until last fall, and the press documented the testimony in all its gruesome detail.
Lasting eight months, it was arguably the longest murder trial in recent memory in Maricopa County Superior Court. The court does not keep those kinds of statistics, however.
It was also remarkably rare in that there was no jury. It was a bench trial, with the prosecutor and defense attorneys presenting evidence and making their arguments directly to the judge, and the judge alone deciding the verdict.
The court doesn’t keep track of those stats either.
Until 2002 in Arizona, only judges determined whether to sentence a killer to the death penalty or to life in prison. But the statutes were rewritten after a 2003 U.S. Supreme Court decision ruled that juries, not judges, should determine if Arizona murderers were eligible for the death penalty.
After that, the jury always deliberated guilt and innocence, then decided if there were factors that made the murder death-worthy, weighed other circumstances in the defendant’s favor and chose life or death.
So over 20 years of covering the courts as a reporter, after sitting in countless capital murder trials, I had never heard of a bench trial in a capital murder case. Nor had the Superior Court public information officer. Nor had most of the judges and attorneys I polled.
They took place, but with the frequency of a four-leafed clover. One former judge told me he tried one two decades ago, in a case whose title he does not even remember. A veteran defense attorney told me he tried one in which the defendant pleaded guilty to murder and then agreed to let a judge decide the penalty. Both defendants were sentenced to life in prison instead of death.
It’s written right into the Arizona Constitution, a paragraph buried in Article 6: “The right of jury trial as provided by the constitution shall remain inviolable, but trial by jury may be waived by the parties in any civil cause or by the parties with the consent of the court in any criminal case.”
“There is no question the defendant deserves the death penalty,” Cohen said early in her sentencing narrative on June 7.
What followed, essentially was a very detailed “BUT,” and that’s why the case called for a bench
The simple reason is that the crimes were horrific.
“Jurors can’t distinguish between an ordinary murder case and those beyond the norm,” said Roland Steinle, a retired Superior Court judge who presided over 14 capital cases that went to verdict, including those of the “serial shooters,” Dale Hausner and Samuel Dietemann. As a defense attorney, he tried another 14.
“A jury who’s never seen anything like this, there’s no way they’re going to find for life,” he continued. “The more horrible the facts, the more you want to waive the jury.”
But when they hear the facts of the case and see photos like they have never seen, hopefully will never see again, and can never forget, their minds are often made up.
“They’re not supposed to consider punishment at any point,” said R.J. Parker, Miller’s lead attorney.
“How do you prevent them from not being angry or upset?” he asked.
The 2002 Supreme Court case, Ring v Arizona, was supposed to make trials more fair. The decision, authored by Justice Ruth Bader Ginsburg, ruled that juries, not judges, were to decide if there were aggravating circumstances that pushed a murder into the “worst of the worst” category. In rewriting statutes, the Arizona legislature decided to go one step further in ruling that the jurors would also impose the life-or-death sentence.
Though the ruling was supposed to aid defendants, that one extra step may have had the opposite effect.
“When Ring came out, we were thinking, Holy s***, this is going to be bad for defendants, because they (juries) don’t see the garden-variety murders that judges do,” said David Derrickson, a defense attorney who also served as a Maricopa Superior Court judge.
Judges would make careful comparisons among murder cases, note which sentence fell where and judge accordingly.
But it became apparent right away that jurors were more likely to vote for death. All murders are horrible. Murder trials are traumatic. And “garden-variety” murder is not something a first-time trial watcher can necessarily ascribe to the killer before them.
“This is where the intellectuals who wanted Ring outsmarted themselves,” Steinle said.
It’s unclear from the court record who initiated the bench-trial idea in Miller’s case, but the defense, prosecution and judge must all agree. And although the ruling was sealed by the court, there is no back-and-forth in the record to imply there was much, if any, disagreement.
Before her appointment to the bench, Cohen was a homicide prosecutor with a reputation for meticulous detail. She didn’t resort to tricks or drama like some of her more notorious former colleagues, and instead built a brick wall out of the evidence. It was Cohen who sent the so-called “Baseline Killer,” Mark Goudeau to Death Row.
Similarly, the prosecutor, Deputy Maricopa County Attorney Vince Imbordino, has a reputation for being an experienced pro, straight-forward, soft spoken and drama-free. He was the prosecutor who tried so-called “serial shooters” Hausner and Dietemann in front of Judge Steinle, putting one on Death Row and the other in prison for life. And he understood the difference in their cases, even if they acted together.
Parker has been an attorney for 14 years, and Miller has been his client for more than half of those years. It’s a long enough time to get to know a person very well, and like most capital defense lawyers, to see humanity even in a man who committed the most inhumane acts. He realizes that his job is not to set a killer free, but to try to keep him off Death Row. The length of the Miller trial is a testament to his efforts.
“We asked for natural life,” he told me.
But if the first reason for a bench trial is brutality, the second is brutally complex.
For one thing, the murders took place at a changing moment in death penalty history.
Defendants are tried by the laws that were in effect at the time they committed their crimes. In 1992, when Angela Brosso was killed, there were two penalties available for first-degree murder: life with the chance of parole after 25 years, or death. Those sentences were the only possibilities for Miller on that charge.
A year later, death and 25-to-life were still available, but the Arizona legislature had passed a law adding natural life as a penalty, meaning the defendant would never be paroled or released. So there were three sentencing options for that murder.
In 1993 Arizona legislators eliminated parole altogether, and they subsequently eliminated any possibility of release for defendants in capital cases. It was death or natural life. And the 2002 Ring decision shifted judgment from judges to juries for all trials going forward.
The trial also needed to weigh Miller’s many personal and psychological deficits against the severity of his crimes. There were 86 potentially mitigating circumstances that had to be evaluated: Miller’s sadistic sexual fixations, the loss of his father at a young age, a mother who abused him emotionally, showed him porn and acted out sexually in front of him.
“Would the judge allow us to put the same amount of material before a jury?” Parker asked. “Maybe not.”
Would a jury even consider the evidence after the shock of seeing the mutilated bodies of the victims?
Cohen allowed Parker to pursue an insanity defense, though she found Miller guilty, anyway, and not just of the two murders, but also kidnapping and attempted sexual assault.
“Every case has to be considered on the specific facts of the case,” said Kenneth Fields, another retired Maricopa County Superior Court judge. “Get all that stuff in front of a judge. They will parse out the difference between competency and insanity.”
In other words, Cohen and Imbordino were willing to give Parker a chance to talk them out of a death sentence for Miller, rather than just laying the horrible facts in front of traumatized jurors.
Cohen declined to comment on the verdict, as is expected of a judge.
“I am certain they will file a motion for a new trial, and I need to refrain from public comment, especially about any decision regarding waiving jury,” Imbordino said in a text. “I may be overly cautious, but I think I need to be.”
But the comment was there in the verdict.
Cohen ticked off her findings: Miller was only 19 and 20 years old when he committed the murders. He had suffered emotional and sexual abuse from his mother. That was certain.
Evidence showed that he still consumed violent pornography in the years up to his arrest. He admitted he was aroused by violence, but he had mostly kept it at bay since the murders.
He married, had a child, divorced and sought other relationships. He appeared to be a good parent. He had friends who liked him. He had interests and hobbies that gave him community.
But as to whether he was insane at the times of the murders, Cohen pointed out that he had carefully premeditated, and that by concealing evidence and denying involvement, he knew the difference between wrong and right.
Cohen made her judgment. The gallery was absolutely quiet as she came to her decision.
“The question for the court then,” she read, “is if the mitigation is sufficiently substantial to call for leniency.”
“The answer is ‘no.’”
***CORRECTION: This story has been updated to clarify R.J. Parker’s comments.
***CORRECTION: This story initially listed the incorrect date for when parole was eliminated in Arizona. The correct date is 1993.
SUPPORT NEWS YOU TRUST.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.