- The Washington Times - Tuesday, April 23, 2002

Supreme Court justices split sharply yesterday over whether the jury that convicts a murderer must decide any facts used to justify a death sentence.
The appeal attacks a practice used in nine states, and advocates say a victory by death-row inmate Timothy Ring could topple up to 776 death sentences and force new sentencing hearings.
"You can't get five years added onto a sentence unless the jury makes the critical finding, but you can be put to death when the judge makes the critical finding," Justice Ruth Bader Ginsburg said.
"What is done here is somehow exempted from the Sixth Amendment," said Andrew D. Hurwitz, attorney for the former prison guard convicted of killing armored car driver John Magosh in a 1994 Arizona holdup. Ring's appeal invoked the Sixth Amendment right to a jury trial.
Mr. Hurwitz said the "Apprendi rule," established two years ago by the high court, said the Eighth Amendment requires that juries decide beyond a reasonable doubt virtually any fact used to make a sentence more severe than the legal maximum for that crime.
Chief Justice William H. Rehnquist, who dissented from that 5-4 decision, took an early and active role yesterday, questioning the likely impact on other states, and on the federal sentencing guideline if Ring wins.
Mr. Hurwitz minimized the consequences, but Arizona Attorney General Janet Napolitano predicted dire upheaval if the court requires juries to determine all facts in the nine states where judges now do that.
"We don't give the death sentence for jaywalking," Miss Napolitano said. "This is all a creation of Supreme Court precedent giving fuller protections to the defendant, not fewer protections."
The June 26, 2000, Apprendi decision split along unusual fault lines. The main opinion was written by Justice John Paul Stevens, whose judgment was joined by Justices Antonin Scalia, Clarence Thomas, David H. Souter and Justice Ginsburg. Dissenters were Chief Justice Rehnquist with Justices Sandra Day O'Connor, Anthony M. Kennedy and Stephen G. Breyer.
"It seems to me it's up to us," Justice Scalia said yesterday, "whether judge or jury decides, because we imposed the rule."
"Here there's still a balancing, and that's not something traditionally reserved for a jury," Justice Kennedy said.
If any justice in the Apprendi majority switches sides, as Justice Scalia seemed to be considering, Ring loses and faces execution. A ruling that murder juries decide every factor that could justify a death sentence would require those nine states to resentence any inmate whose conviction is not final 30 of 89 on Arizona's death row.
If the court made that ruling retroactive, all 776 cases could be affected with the most impact on Florida's 368 death-row inmates because Florida juries advise the judge if aggravating factors outweigh mitigation. Unanimity is not required.
"I hope this will result in the reversal of death sentences for individuals like my client who were sentenced in part based on facts never heard by a jury," said Robin Rosenberg, of Holland & Knight's pro bono defense team for Richard Cooper, 38, sentenced for a 1982 murder. "I think the court will find decide that the jury must have a greater role in determining death sentences than either Arizona or Florida currently provide for."
At times, the semantic duel yesterday foundered over when sentencing facts are elements of an offense or, as Mr. Hurwitz said, "whether you call them 'sentencing factors' or you call them enhancements.'"
Justice Souter said Apprendi was clear. "Call it an 'element.' Call it a 'fact.' We don't care what you call it."
"This court has never held there is a Sixth Amendment right to jury sentencing," Miss Napolitano replied.
"It seems to me you're making a novel application [of the axiom] that death is different," said Justice Stevens.
"Death is different," Miss Napolitano replied, defending what she called a process "this court has dictated to the states to find the worst murderers to submit to the death penalty."
The court agreed yesterday to consider in an unrelated Tennessee case whether a federal law barring repeat petitions for a writ of habeas corpus always forbids motions to reopen a previous appeal under Rule 60(b).

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