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Is death different? The answer to that question will go a long way toward determining whether an en banc panel of the 9th U.S. Circuit Court of Appeals decides that a recent Supreme Court case could help potentially hundreds of death row inmates get a new sentencing hearing. The 11-judge panel heard arguments over the death sentence of Warren Summerlin, an Arizona inmate convicted of killing Brenna Bailey in 1981 after she attempted to collect a debt from him. A key issue is the recently decided U.S. Supreme Court case Ring v. Arizona, 2002 WL 1357257 , which held that juries, and not judges, must decide the aggravating factors leading to a sentence of death. If the change announced in Ring is structural, Summerlin will likely get a new hearing. If it’s procedural, he and scores of others on death rows in Montana, Idaho and Arizona will likely be out of luck. The panel seemed closely divided. Some, judges, like Richard Tallman, clearly indicated that the change is merely procedural. But Arizona Assistant Federal Public Defender Ken Murray disagreed. “You can have a substantive [decision] by a court that does have procedural implications. And this does,” Murray said. But Arizona Assistant Attorney General John Todd disagreed. “The U.S. Supreme Court, when it decided Ring, did not construe, did not interpret, any Arizona statute,” Todd said. “They found that the Arizona procedure for the death penalty was unconstitutional.” Other judges clearly did not want to call the change merely procedural. “It’s not a structural error not to have a jury when you’re supposed to?” Judge Stephen Reinhardt asked. “What would be a structural error if not having a jury is not a structural error? The only other thing I can think of is not having a lawyer or not having a judge.” Still others, like Judge Kim Wardlaw, asked if the fact that this was a case involving life or death made it different from others, where the change might be seen as merely procedural. Several suggested that it might, though Judge Diarmuid O’Scannlain pointed out more than once that the 9th Circuit decided in United States v. Sanchez-Cervantes, 282 F.3d 664, that Ring‘s predecessor, Apprendi v. New Jersey, 530 U.S. 466, did not apply retroactively. The case of Summerlin v. Stewart, 98-99002, had previously been notable for another 9th Circuit decision that was vacated. A divided panel had ordered an evidentiary hearing into whether the trial judge’s marijuana use, which he admitted to years later, clouded his judgment when sentencing Summerlin to death. It was clear after Tuesday’s argument that that claim is still in play. The judges were clearly worried, however, about using a judge’s personal history as grounds for appeal. Murray seemed to sense that, telling the court it could find a rule that would “be a very narrow one and be applied to the facts of this case.” But several on the panel were searching for more than circumstantial evidence linking the drug use and the death sentence. The Supreme Court has ruled that jurors drinking alcohol during deliberations is not a problem, Tallman said, “and you don’t even have evidence that he was using marijuana” while deliberating. “This is just about discovery,” Murray said. “To see if it affected the sentencing phase.”

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