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Appeals court tosses out 111 death sentences

Unusual facts of main case cited in ruling

From Bill Mears
CNN Washington Bureau

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A federal appeals court overturned 111 death sentences that had been imposed by judges in Arizona, Idaho and Montana. CNN's Frank Buckley reports (September 3)
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WASHINGTON (CNN) -- Citing a 2002 Supreme Court ruling that only juries can impose the death penalty, a federal appeals court overturned 111 death sentences Tuesday that had been imposed by judges in Arizona, Idaho and Montana.

In an 8-3 vote, the 9th Circuit Court of Appeals in San Francisco, California, said inmates sent to death row by judges should have their sentences commuted to life in prison.

Tuesday's ruling covers only cases in states within the appeals court's jurisdiction: 89 in Arizona, 17 in Idaho and five in Montana. The cases in Idaho and Montana include everyone on those states' death rows; Arizona has others who are not affected by the ruling.

Those three states, along with Colorado and Nebraska, all changed their laws to specify that only juries can impose death sentences, but the issue of whether the high court's ruling was retroactive to death sentences previously imposed by judges is the focus of the federal appeals court argument.

Capital Punishment
Supreme Court

Arizona Assistant Attorney General Kent Cattani expressed disappointment in the ruling and said the state intends to appeal.

"This seems to conflict with every other circuit that's ruled on the issue," he said.

In Tuesday's ruling, Judge Sidney Thomas wrote for the majority that, "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."

Thomas also wrote, "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."

The 9th U.S. Circuit Court of Appeals is the largest of the 13 federal circuit appellate courts in the United States, covering nine Western states.

The court is widely acknowledged as one of the most liberal of the circuit courts. Many of its judges were appointed by Democratic presidents. It is also the court that ruled that reciting the Pledge of Allegiance in public schools is an unconstitutional endorsement of religion because of the addition of the phrase "under God" in 1954 by Congress.

Death penalty opponents were delighted with Tuesday's decision but acknowledged that an appeal to the U.S. Supreme Court is likely.

"I would not be surprised if the Supreme Court does decide to weigh in again on this issue," said David Elliott, spokesman for the National Organization to Abolish the Death Penalty. "We're early in the process of figuring out what the Supreme Court's ruling really means."

The Supreme Court's ruling was made in the case of Ring vs. Arizona.

The 11th U.S. Circuit Court of Appeals has issued a conflicting ruling that upheld the right of judges to overturn jury sentences in cases argued before the high court's ruling.

Richard Dieter, director of the Death Penalty Information Center, stressed that even if the 9th Circuit ruling is upheld, state prosecutors still have the option of empaneling new juries to reconsider the penalty phase of the trials, and could reimpose a death sentence.

"They're not completely off the hook yet," Dieter said.

"I guarantee you there's no way there's going to be 150 new death sentences," Elliott said. "Some defendants would have better lawyers, you'd have different juries which would be less likely to impose sentences, plus evidence will be older and witnesses will have more trouble remembering facts. There will be all sorts of factors."

The director of the American Civil Liberties Union's Capital Punishment Project, Diann Rust-Tierney, expressed satisfaction with the ruling while acknowledging its limited nature.

"We are pleased the 9th Circuit ruled Ring v. Arizona is retroactive. However, this is just one barrier that has been removed for those prisoners who were unconstitutionally sentenced," she said. "We're obviously hopeful, but there are many more barriers to prisoners who are entitled to relief from the death penalty."

'The raw material from which legal fiction is forged'

The case involves Warren Summerlin, who was convicted of murdering Brenna Bailey, a 36-year finance company administrator who had come to his house to discuss money owed on a loan in 1981. After a jury had convicted Summerlin of murder, a judge then sentenced Summerlin to death, citing "aggravating" factors.

The U.S. Supreme Court in 2002 found the practice of judges sentencing inmates in capital cases to be unconstitutional. Writing for the 7-2 majority, Justice Ruth Bader Ginsburg said, "Arizona presents no specific reason for excepting capital defendants from the constitutional protections extended to defendants generally, and none is readily apparent."

In concurring, Justice Antonin Scalia, normally a staunch death penalty supporter, said a judge "may not direct a verdict for the state, no matter how overwhelming the evidence."

Meanwhile, the case that led to the appeals court ruling was described in the decision as "the raw material from which legal fiction is forged."

According to the ruling, that "raw material" included:

• A police tip from the defendant's mother-in-law based on her daughter's "extra-sensory perception"

• An alleged romantic encounter between one of the defense attorneys with the first prosecutor in the case during negotiations on a possible plea agreement

• The judge imposing the death sentence while allegedly under the influence of marijuana. The judge was later disbarred.

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