Metropolitan News-Enterprise


Wednesday, September 3, 2003


Page 1


Ninth Circuit Says Death Penalty Ruling Applies Retroactively

More Than 100 Defendants in Three States Affected by En Banc Decision, Lawyers Say


From Staff and Wire Service Reports


A U.S. Supreme Court ruling that requires juries, rather than judges, to decide sentencing issues in death penalty cases must be applied retroactively, the Ninth U.S. Circuit Court of Appeals ruled en banc yesterday.

In an 8-3 decision, the judges overturned a prior ruling by a three-judge panel and threw out the death sentence imposed by a Phoenix judge in the case of Warren Wesley Summerlin.

Summerlin was found guilty of first-degree murder in the 1981 slaying of Brenna Bailey, 36. The Tempe finance company administrator’s body was found in the trunk of her car a day after she visited Summerlin to check on money he owed.

The Ninth in an opinion by Judge Sidney Thomas, unanimously rejected claims that Summerlin received ineffective assistance in the guilt phase of his 1982 trial. “However, we conclude that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), applies retroactively so as to require that the penalty of death in this case be vacated.”

Ring and Apprendi

The Ring court held that an earlier decision allowing judges to decide whether to impose the death penalty was no longer good law in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi, which dealt with a hate-crimes law, held that the right to trial by jury applies to any allegation of fact, other than that of a prior conviction, that has the effect of increasing a sentence above what would otherwise be the statutory maximum.

At the time of the Ring decision, three states in the Ninth Circuit—Arizona, Idaho, and Montana—left capital sentencing in the hands of judges. Lawyers familiar with the case estimated that more than 100 defendants in those states will be affected.

Summerlin and other death row inmates in the three states sought to have their sentences vacated, but prosecutors argued that Ring was not retroactive.

That argument was based on Teague v. Lane, 489 U.S. 288 (1989). The justices held there that when a federal appeals court declares a “new rule” of criminal procedure, the decision will generally not apply in cases that were final as to the state courts at the time.

‘Essential Fairness’

But Thomas said the Ring rule falls under Teague’s exception allowing retroactive application of a rule “that seriously enhances accuracy” of proceedings or involves “bedrock procedural elements essential to the fairness of the proceeding.”

Thomas was joined by Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, M. Margaret McKeown, Kim McLane Wardlaw, and Raymond C. Fisher. Judge Johnnie B. Rawlinson authored a dissent that was joined by Judges Richard C. Tallman and Diarmuid F. O’Scannlain.

Defense attorneys hailed the verdict.

“This is fundamental justice,” Ken Murray, a federal public defender in Phoenix, commented. Murray estimated that the decision affects at least 100 inmates on Arizona’s death row alone.

If the decision stands, Arizona and the other states might hold new penalty trials, convening juries to decide between life and death, said John Pressley Todd, a lawyer with the Arizona attorney general’s office. He said the state was trying to determine exactly how many condemned inmates are affected by the ruling.

Reversal Predicted

In Idaho, the ruling is expected to alter the death sentences of at least 15 condemned inmates. But Montana Assistant Attorney General Pamela Collins said it would not affect the five death row inmates there, because one pled guilty, another was sentenced on the basis of an aggravating factor found by a jury, and three were sentenced on the basis of prior murder convictions, so that the Apprendi reasoning cited in Ring would not apply.

An Arizona prosecutor said he doubted yesterday’s ruling would stand.

“We are disappointed. We are going to appeal,” said Kent Cattani, chief counsel for the Arizona attorney general’s office. Said Collins, “This may cause some chaos in the short term. I don’t think this is going to hold up.”

Kent Scheidegger of the Sacramento-based Criminal Justice Legal Foundation agreed.

“Regrettably, a court with a clear agenda to block the enforcement of capital punishment has issued yet another clearly wrong decision,” Scheidegger said in a statement. “We expect that this error will be corrected by the Supreme Court.”

Scheidegger noted that Apprendi has been held not to be retroactive under Teague, and said Ring should be treated no differently. The Arizona Supreme Court agreed, leading to the habeas corpus proceeding that produced yesterday’s ruling.

Two states in other circuits, Nebraska and Colorado, gave juries no role in death penalty sentencing at the time of the Ring ruling. The Death Penalty Information Center, which compiles statistics on capital punishment, calculated that since 1976, the five states have executed 29 people under laws allowing nonjury sentencing.

In July, meanwhile, the 11th U.S. Circuit Court of Appeals ruled in a Florida case that the Supreme Court ruling should not be applied retroactively in some death penalty cases. In Florida, Alabama, Indiana and Delaware, juries recommend a life or death sentence but judges are allowed to give the death penalty against the jury’s wishes.

Justice Department officials in Washington said they would have no comment on the appeals court decision.

The case is Summerlin v. Stewart, 98-99002.


Copyright 2003, Metropolitan News Company