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Court overturns 100 death sentences { September 2 2003 }

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September 2, 2003
Court Overturns 100 Death Sentences in 3 Western States

The federal appeals court in San Francisco yesterday overturned the death sentences of more than 100 prisoners in three states because judges rather than juries had made the crucial factual determinations in sentencing them to death.

The court ruled that a Supreme Court decision last year striking down the capital sentencing laws in the three states and two others because they allowed judges to make those factual findings must be applied retroactively even to those inmates who had exhausted all of their appeals.

The affected prisoners will be entitled, at a minimum, to a new sentencing proceeding, unless the United States Supreme Court reverses the appeals court's decision.

The decision of the appeals court, the United States Court of Appeals for the Ninth Circuit, affects death row inmates in Arizona, Idaho and Montana. The other two states that had had unconstitutional sentencing laws, Colorado and Nebraska, are not directly affected by the decision because they are not in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, along with Guam and the Northern Mariana Islands.

Two other federal appeals courts have decided that last year's Supreme Court decision, known as Ring, does not apply retroactively. That split, coupled with the significance of the yesterday's decision, makes Supreme Court review fairly likely.

"It's rare that you get so many sentences affected by one decision," said Richard Dieter, executive director of the Death Penalty Information Center. "It forces the issue to be decided."

Legal experts say that juries in capital cases tend to be more lenient. Only one of 12 jurors needs to be convinced to impose a life sentence; jurors typically confront such issues once in a lifetime and are more likely to appreciate their gravity; and elected judges are occasionally swayed by political considerations, experts believe.

According to the Death Penalty Information Center, 124 people are on death row in Arizona, 16 are in Idaho and 6 in Montana. Some of them still have appeals pending and so did not need yesterday's decision to have the benefit of Ring. According to the Federal Public Defender's Office in Arizona, 94 inmates in Arizona and 16 in Idaho had exhausted their direct appeals and had their sentences overturned by yesterday's decision. A breakdown for Montana was not immediately available.

Yesterday's decision turned on the application of complicated and technical doctrines about when newly announced constitutional principles must be applied retroactively. But the majority decision often paused to make the point that procedures for imposing the death penalty must always be considered extraordinary.

New substantive rules announced by the Supreme Court generally apply retroactively. But new procedural principles are retroactive only if they are, as the Supreme Court put it, "watershed rules" that both "alter our understanding of the bedrock procedural elements" and "without which the likelihood of an accurate conviction is seriously diminished." That standard is difficult to satisfy.

Judge Sidney R. Thomas, writing for the majority in the 8-to-3 ruling yesterday, said the Ring decision was substantive because it effectively created a new crime in Arizona in the way it distinguished between ordinary murder and capital murder, by requiring the jury to decide whether certain so-called aggravating factors were present.

Judge Thomas added, in the alternative, that the Ring decision satisfied the exceptions to the ordinary rule that procedural changes do not apply retroactively.

"Depriving a capital defendant of his constitutional right to have a jury decide whether he is eligible for the death penalty is an error that necessarily affects the framework within which the trial proceeds," he wrote, adding that giving jurors a larger role aided in fairness of sentencing.

"Fact-finding by a jury, rather than by a judge, is more likely to heighten the accuracy of capital sentencing proceedings," he wrote.

Yesterday's decision involved Warren Summerlin, who is on death row in Arizona for killing a bill collector and who challenged his death sentence on a number of grounds.

While the penalty phases in most death penalty trials involve extended presentations by expert witnesses, family members and others of aggravating and mitigating evidence for juries to consider, in Arizona, at least, sentencing proceedings before judges were brisk affairs that relied more on legal memorandums than testimony. On the day Mr. Summerlin was sentenced to die, for instance, the judge in the case, Philip Marquardt, imposed a second death sentence as well.

"A reasonable inference from the habituation brought about by imposing capital punishment under near rote conditions," Judge Thomas wrote, "is that a judge may be less likely to reflect the current conscience of the community and more likely to consider imposing a death penalty as just another criminal sentence."

The appeals court noted that Judge Marquardt had admitted to heavy marijuana use around the time he sentenced Mr. Summerlin to death. "If the allegations concerning Judge Marquardt are true, Summerlin's fate was determined by a drug-impaired judge, habituated to treating penalty-phase trials the same as noncapital sentencing," Judge Thomas wrote.

Judge Thomas added that elected judges like Judge Marquardt might be more likely to impose the death penalty for political reasons.

Judge Stephen Reinhardt joined in the decision and wrote separately to say that the technical doctrines it discussed obscured how straightforward he found the case.

"Executing people because their cases came too early because their

appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions regarding life and death in capital cases is surely arbitrariness that surpasses all bounds," Judge Reinhardt wrote.

The three dissenting judges said that the Ring decision should not apply retroactively because it announced neither a new substantive rule nor a fundamental alteration of a procedural one.

A lawyer with the Arizona attorney general's office, John Pressley Todd, said the office would ask the Supreme Court to review the case.

Copyright 2003 The New York Times Company

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