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A case stranger than fiction
By Linda Petty
(CNN) -- The case that led a federal appeals court to overturn 111 death sentences in Arizona was described in the ruling by the 9th U.S. Circuit Court of Appeals as "the raw material from which legal fiction is forged: "A vicious murder, an anonymous psychic tip, a romantic encounter that jeopardized a plea agreement, an allegedly incompetent defense and a death sentence imposed by a purportedly drug-addled judge." The facts of the crime are brutal. But the legal proceedings that followed caused the court to quote Mark Twain, who observed that "truth is often stranger than fiction because fiction has to make sense." Warren Summerlin was convicted of the 1981 killing of Brenna Bailey, a 36-year-old finance company administrator who had come to his house to discuss money owed on a loan. Her partially nude body was found about a mile away from the Summerlin home in Tempe, Arizona, a day after she disappeared. Before the body was discovered, a police tip line received a call from Summerlin's mother-in-law accusing him of murder based on her daughter's psychic abilities. Summerlin's first attorney from the public defender's office soon left that position. The next defense attorney appointed to the case was in the middle of a plea bargain when she embarked on what she described as a "personal involvement ... of a romantic nature" with the prosecutor in the case. Summerlin, who was described by the appeals court judge as an "extremely disturbed man" and by a psychiatrist as "functionally retarded," refused the plea deal that would have given him a 38-year sentence. Summerlin was then represented by a lawyer who, according to the ruling, failed to file a motion on time, did not interview defense experts, and at the sentencing hearing -- at his client's direction -- presented no mitigating evidence. The appellate court found more problems with the initial proceedings. It said the trial judge exhibited confusion about the evidence during pretrial hearings and at trial, and that during the trial he made "quite perplexing, if not unintelligible, statements." That behavior may have been explained years later during Judge Philip Marquardt's disbarment hearing when he admitted being addicted to marijuana. He was convicted in 1988 in Texas of misdemeanor possession of marijuana and was cited in a 1991 Phoenix Police Department report that detailed his attempts to buy marijuana. It was that report that led to his disbarment. Marquardt sentenced Summerlin to death in 1982, citing two aggravating circumstances. One was that he had a prior felony conviction for aggravated assault during a road rage incident in which he waved a pocketknife at a person who had driven a car that had hit his wife. The other factor cited was that he had murdered Bailey in an especially heinous, cruel or depraved manner. Marquardt found no mitigating circumstances. After exhausting all state appeals, Summerlin appealed to the U.S. Circuit Court of Appeals. In this appeal, Summerlin alleged that his attorney failed to bring to the trial court's attention what he called his "only viable defense" -- that he had an organic brain dysfunction and an "impaired ability to premeditate or to exercise self-control." Summerlin's appeal argued several points. He alleged the judge deliberated while under the influence of drugs. He cited lack of effective assistance of counsel during the guilt and sentencing phases of the trial. He said his court-appointed attorney had a conflict of interest that adversely affected adequate representation. He contended the Arizona death penalty statute was unconstitutional because it allowed a judge rather than a jury to determine a capital sentence. And he argued that cumulative errors required reversal of his conviction and sentence. As to the claim of inadequate counsel, the only claim related to the guilt phase of the trial, the appellate court ruled that Summerlin's trial lawyer's performance "did not fall below the objective standard of reasonableness required." The remainder of the appeal issues dealt with his death sentence. A 2002 U.S. Supreme Court decision was cited in the appeal's court overturning Summerlin's death sentence. The court ruled that the Sixth Amendment right to a trial by jury also required a jury to decide capital sentences, saying "a judge sitting without a jury cannot constitutionally enter a judgment of conviction for capital murder." Although Summerlin was convicted before the ruling, the appellate court applied it retroactively. The appellate ruling also said that if the allegations of the trial court judge's drug use were true, it would mean that Summerlin's fate was determined by a drug-addled judge who treated death penalty phase cases the same as non-capital sentencing trials and who relied on inadmissible evidence. The ruling noted that while no system was perfect, allowing a panel of 12 jurors to impose capital punishment reduced the risk of error, because the panel must agree on aggravating factors beyond a reasonable doubt, because their job security is not threatened by the trial's outcome, and because they may only consider evidence subject to the rigors of cross-examination.
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