Ninth Circuit considers if top court death sentence law ruling is retroactive

SAN FRANCISCO -- A federal appeals court has agreed to decide whether a U.S. Supreme Court ruling that overturned death sentence laws in five states applies retroactively or only to new trials.

Ruling 7-2 in June, the Supreme Court's decision concerned instances in which juries determined defendants' guilt or innocence and judges alone decided their punishment. The court held that such sentences violate defendants' constitutional rights to trial by jury, rejecting the argument that judges can be more evenhanded.

But the decision, which applies to new cases, left unclear whether it also should apply to the nearly 200 condemned inmates already sentenced to death by judges in Arizona, Colorado, Idaho, Montana, and Nebraska.

It is still undecided if either the Supreme Court's ruling or the 9th Circuit court decisions would affect the 84 prisoners condemned to die in Nevada.

Death penalty foe Michael Pescetta, a deputy federal defender specializing in capital cases, said 17 of the state's condemned prisoners could get off death row as a result of the ruling.

Nevada law allows for judicial sentencing when there's a hung jury or when an inmate waives the right to a jury trial. Pescetta said those exceptions "just make this state's system worse."

"My belief is that this decision essentially invalidates all forms of judicial sentencing," he added. "But I do have to admit that litigation is going to be necessary to see what it extends to and what it doesn't extend to."

Ten of the 17 inmates were given death sentences from judges after waiving their rights to jury trials and pleading guilty.

Judges ordered death by injection in six other cases after trial jurors couldn't decide on a penalty; and one inmate had a bench trial before a judge that ended in a death sentence.

The supreme court's ruling is based on the case of Arizona inmate Warren Summerlin, who 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. Summerlin was convicted in 1982 and a judge sentenced him to death.

Last year, however, the 9th U.S. Circuit Court of Appeals set aside Summerlin's death sentence, ruling that the condemned murderer is entitled to hearings on whether the marijuana addiction of the judge who sentenced him to death tainted the outcome.

Ruling 2-1, the 9th Circuit said defendants had a right to be sentenced by a judge "who was not acting at that time under the influence of, or materially impaired by, a mind-altering illegal substance such as marijuana."

The Arizona Attorney General's Office immediately petitioned the court to rehear the case, saying the decision could affect hundreds of criminal cases tried before Maricopa County Judge Philip Marquardt, who was thrown off the bench after a 20-year career for a marijuana conviction.

But when the U.S. Supreme Court agreed to decide the constitutionality of judges, instead of juries issuing death sentences, the 9th Circuit vacated its ruling in Summerlin's case.

After the Supreme Court ruled in June, the 9th Circuit ordered Arizona prosecutors and Summerlin's attorneys to file briefs on whether the high court's death penalty decision means a jury, not Marquardt, should have decided Summerlin's fate.

Summerlin's attorney, Leticia Marquez of Tucson, said it was unclear by the 9th Circuit's two-sentence order Friday if the court will review issues beyond whether the Supreme Court's death penalty decision applies retroactively. She said the court may consider whether defendants have a right to inquire whether a judge was lucid when making decisions.

"We can't speculate why the 9th Circuit took it," she said. "There are a number of significant constitutional issues."

Arizona Assistant Attorney General John Todd said the state's position is that the Supreme Court's ruling "applies only to new cases."

Following the Supreme Court's ruling, the Arizona Legislature repealed its law granting judges' absolute sentencing authority in new capital cases.

Whatever the 9th Circuit rules, its decision would only impact Arizona, Montana and Idaho of the five states. The three are within the 9th circuit.

The Supreme Court, which is the final arbitrator of capital cases, could weigh in after the 9th Circuit rules. The circuit did not indicate when it would hear the case.

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

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Nevada's death row inmates whose sentencings were handled by judges include: Edward Beets, Lawrence Colwell, Darion Daniel, Terry Dennis, Robert Farmer, Carlos Gutierrez, James Hill, Donte Johnson, Daniel Jones, Jimmy Kirksey, Daryl Mack, Frederick Paine, Timothy Redmen, David Riker, Cary Williams, Antoine Williams and Edward Wilson.