Richard Rossi
#50337
P.O. Box 3400
Florence, AZ 85232
Death Row
The Ring Decision - Once Again
On Tuesday, September 2, 2003, the Ninth Circuit Court of Appeals issued
its ruling on the retroactivity element of the Ring case. An "en banc"
panel decided 8-3 in the case of an Arizona Death Row prisoner, Warren Summerlin
(Summerlin v. Stewart No. 98-99002) and the result was to overturn approximately
100 death row sentences in Arizona, Idaho and Montana. It granted retroactivity
from the Ring case thus requiring all these prisoners to be resentenced by
a jury because they had all previously been sentenced to death by a judge.
The U.S. Supreme Court had ruled on the issue in June, 2002, in the Ring
v. Arizona No. 01-488. But they had not answered the
retroactivity aspect of the case. The Ring case was based on Apprendi
v. New Jersey 530 US 466 (2000). Ring challenged Arizona's sentencing
scheme claiming it violated the Sixth Amendment's jury trial guarantee by
entrusting to a judge the
finding of a fact that raises the defendant's maximum penalty. In Arizona,
the law allowing a judge rather than a jury to do the
sentencing had been governed by Walton v. Arizona 497 US 637 (1990), but
this case was overturned by the U.S. Supreme Court's decision in Ring.
Around the same time, the State of Arizona requested an "en banc" hearing
before the entire Ninth Circuit to review a sub-panel
decision granting Summerlin a new evidentiary hearing. Summerlin's
hearing was to determine the competency of Judge Philip Marquardt because
of allegations that Marquardt was under the influence of marijuana when he
sentenced Summerlin to death. Marquardt had twice been convicted of
marijuana violations and at his disbarment hearings he admitted that he had
been addicted to marijuana for 16 years while on the bench. The "en
banc" review was granted, and since Summerlin had also raised the vital Ring
issue in his appeal, the Ninth Circuit would also decide the retroactivity
issue of Ring .
The issue of retroactivity was at point here. This can be a very tricky
subject to explain. There are rules that govern the
application of complicated and technical doctrines of newly announced constitutional
principles to achieve retroactivity. And extra care is given to procedures
imposing the death penalty. New substantive rules announced by the
Supreme Court generally apply retroactively whereas new procedural principles
are retroactive only if they are so major that they are considered "watershed
rules" that both "alter our understanding of the bedrock procedural elements"
and "without which the likelihood of an accurate conviction is seriously
diminished."
In his concurring opinion, Judge Reinhardt wrote separately to say that beside
the technical decisions, it is all rather straight
forward. "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."
The three dissenting judges stated that the Ring decision should not be retroactive
because it was neither a new substantive rule nor a fundamental alteration
of a procedural one. Also they pointed out that three other Federal
Circuit courts had ruled against Ring retroactivity.
So, where do we stand now? The State will submit a writ of certiorari
appeal to the U.S. Supreme Court, asking them to review
the Ninth Circuit Court decision. The Supreme Court can refuse the
appeal and the Ninth Circuit decision stands, or they can elect to accept
the case. If they accept the case, the earliest we can have a decision
would be February 2004 or the latest, June, 2004. If the Supreme Court
upholds the retroactivity decision of the Ninth Circuit, the State of Arizona
will then have some major decisions to make. Will they decide to empanel
new juries for all these cases and try to locate evidence and witnesses,
many who have moved or are deceased, or will they elect to offer life sentences
to all? The newer cases are subject to a sentence of Life Without Parole,
while the older cases are simply life - defined 25 years to life. It
is possible that some of us would be eligible for release since we have already
served the required years of a life sentence. This worries many in
the outside world.
It is estimated that it would cost around $27 million to resentence all of
us. Money the State does not have. They also lack the huge number
of attorneys it would take to handle this case load. Another serious
problem is that for each resentencing, a mitigation
specialist is required to do a work-up of all the pertinent mitigation.
There are only two qualified mitigation specialists in Arizona. There
are more questions than answers.
One thing is certain. Within a few months we may begin to emerge from
the limbo we have been in for so many years and we may have a better idea
as to whether or not we have a "future." It has been a long and winding
road full of surprises and many disappointments that had brought us to this
point. I keep asking myself can this really be the time when we may
be able to get off the slow train to nowhere.
The conductor is lurking in the shadows and may soon punch our tickets
granting passage to a new life.
©Richard Rossi 50337
PO Box 3400
Florence, AZ 85232
Death Row
September 5, 2003
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