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The 9th U.S. Circuit Court of Appeals has agreed to decide if the U.S. Supreme Court’s decision this summer in Ring v. Arizona, 02 C.D.O.S. 5594, gives condemned inmates a fresh opportunity to appeal their sentences. Ring held that juries, not judges, must decide the elements needed for a death sentence, and in doing so overturned the death sentences of more than 150 death row inmates nationwide. The 9th Circuit will use an Arizona death penalty case to decide if the decision applies retroactively to inmates who have already exhausted their direct appeals. Because the court withdrew its previous three-judge panel decision in Summerlin v. Stewart, 98-99002, the case is going straight from the district court to an en banc hearing, a highly unusual procedure known as “initial en banc.” The withdrawn opinion was notable for the divided panel’s holding that the trial judge’s marijuana habit may have prejudiced the defendant. The majority had ordered a lower court to hold an evidentiary hearing into the matter. Initial en banc hearings are rare. Last year, the 9th Circuit decided another, a move some on the court later suggested was a mistake by reinstating the district court’s opinion. Judge Stephen Reinhardt wrote separately to note that “We ordinarily do this only when there is a direct conflict between two 9th Circuit opinions and a panel would not be free to follow either.” The court ordered briefing on the application of Ring on Oct. 23, and ordered the initial en banc hearing Friday. Summerlin’s case is also notable because the prosecutor and defense attorney had a Christmas party fling during pre-trial maneuverings. The defense lawyer left the case before trial began, and the panel said the fling wasn’t prejudicial. “We can’t speculate why the court took this case on for the initial en banc,” said Leticia Marquez, an assistant federal public defender in Arizona. “We realize that there are a number of significant constitutional issues that the court is interested in.” The ruling would affect death row inmates in at least three 9th Circuit states: Arizona, Montana and Idaho. All have, in the past, given sole sentencing discretion to judges. With 125 inmates, Arizona has the largest death row. In September, the Arizona Supreme Court denied without comment an effort by 31 death row inmates to be re-sentenced under Ring. In each case, the inmate’s direct appeals had been exhausted.

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