- The Washington Times - Tuesday, September 2, 2003

A federal appeals court yesterday overturned one death sentence and gave a new lease on life to 167 other condemned murderers in five states by declaring that a Supreme Court-ordered change in sentencing procedure is retroactive.

That June 2002 Supreme Court decision required that juries — not judges — decide in the sentencing phase beyond a reasonable doubt all facts that affect a death sentence.

“By deciding that judges are not constitutionally permitted to decide whether defendants are eligible for the death penalty, the Supreme Court altered the fundamental bedrock principles applicable to capital murder trials,” said yesterday’s 8-3 ruling by the 9th U.S. Circuit Court of Appeals, written by Circuit Judge Sidney R. Thomas.

Both the majority and dissenting opinions were written by appointees of President Clinton.

Besides overturning Warren Summerlin’s death sentence in Arizona, the 9th Circuit ruling cast doubt on 89 other Arizona death sentences, plus 78 others in Idaho, Montana, Nebraska and Colorado, where there are similar sentencing laws.

The decision will quickly be appealed to the U.S. Supreme Court, Kent Cattani, chief counsel of Arizona’s capital litigation section, said last night.

He said the eventual outcome of the Summerlin appeal would govern the fate of the state’s entire death row on this issue.

“I think the United States Supreme Court will have to resolve this before there will be any resentencings in any of these states,” said Richard Dieter, executive director of the Death Penalty Information Center.

“It’s rare that you get a decision that potentially gives such a large group of people a second chance to avoid the death penalty,” Mr. Dieter said. “A lot else has to happen … a lot of lives and work and money is needed to redo these cases with juries, with uncertain results and then you start the appeal process all over again if they are resentenced to death.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, said he hoped “this error” will be overturned by the Supreme Court.

“Regrettably, a court with a clear agenda to block the enforcement of capital punishment has issued yet another clearly wrong decision,” Mr. Scheidegger said.

Juries now effectively issue death sentences in 29 of the 38 states with capital punishment, and the Supreme Court’s 7-2 Ring v. Arizona ruling pointedly did not specify whether that procedure would be retroactively required in those that do not. Besides the four other Western states that use Arizona-style systems, four states with almost 700 people on their death rows could also have their systems challenged.

Retroactivity is not automatic for all new constitutional rules. The so-called Teague rule makes retroactive only “watershed” rulings that the justices said “alter our understanding of the bedrock procedural elements” that remove all chance that a conviction was fair.

The word “bedrock” appeared 14 times in yesterday’s decision with the eight majority judges saying Ring met that test of importance, and the three dissenters saying it did not.

“The majority opinion wanders afield in the first instance by holding that Ring contains a new substantive rule,” the dissenters said in an opinion written by Circuit Judge Johnnie Rawlinson.

Although the broad impact of yesterday’s decision virtually assured a high-court test, the 9th Circuit interpretation directly involved only Summerlin, upholding his conviction but not the sentence for the ax murder of bill collector Brenna Bailey in 1981 when she came to his house to collect a debt.

Just five weeks before yesterday’s 9th Circuit ruling that the Ring decision is retroactive, the 11th Circuit ruled it is not and, and without considering the merits of his appeal, rejected murderer William T. Turner’s attempt to challenge Florida’s sentencing system.

Law professor and visiting Judge Charles F. Baird of the Constitution Project death-penalty initiative, who wrote opinions that upheld a number of death sentences on the Texas Court of Criminal Appeals, predicted yesterday the high court will adopt the 9th Circuit reasoning and reject the 11th.

“If we’re going to have capital punishment, this Supreme Court is going to provide very strict judicial scrutiny of how that punishment is imposed and that it should be done by a jury and not by judges,” Judge Baird said.

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