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A federal appeals court overturned more than 100 death sentences last week in an opinion that takes aim at the Supreme Court for first rejecting, then embracing, the appeals court’s 1988 position on the deciding issue. The 9th U.S. Circuit Court of Appeals retroactively applied a Supreme Court decision saying that juries, not judges, must make the factual findings that determine whether those convicted of capital crimes are sentenced to death. In the days after the decision, its impact was the subject of disagreement. Summerlin v. Stewart, No. CV-86-00584-ROS. John Todd, the assistant Arizona attorney general who argued against retroactivity before the court, said that if the decision stands, the affected prisoners can have new juries weigh the aggravating and mitigating factors that will determine their new sentences. Not so, said Dale Baich, the supervisor of the capital habeas unit of the Arizona federal public defender’s office. “Our view is that the cases should go back to the state courts for resentencing to life,” he said. “Because it’s a bedrock principle, since the state got it wrong the first time, death is no longer on the table.” Todd’s office will ask the Supreme Court to reverse the 9th Circuit. At the least, “The Supreme Court needs to help clarify what should be done with these cases,” he said. “It would be unfair to the defendants and the victims’ families to be left in this legal limbo.” The federal defender’s office will oppose any petition for certiorari, said Baich. In its decision, the 9th Circuit looked back to its own 1988 en banc holding that Arizona’s sentencing scheme violated a defendant’s Sixth Amendment right to trial by jury. Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.). The Supreme Court abrogated that decision in Walton v. Arizona, 497 U.S. 639 (1990), until it reversed itself in Ring v. Arizona, 536 U.S. 584 (2002). The 9th Circuit recalled the shift at the Supreme Court level at several points in its opinion. It noted, “ Ring expressly overruled Walton in relevant part,” and “ Ring confirmed what we stated in Adamson.” The court asked whether the defendant who raised the identical issues years ago in Walton should get the benefit of Ring. The 8-3 en banc majority said yes, as if it were simply a matter of fairness. But it’s not that simple. The 11th Circuit, in a Florida case, came to a conclusion that opposes the 9th Circuit’s. Turner v. Crosby, No. 02-14941 (2003). So did the supreme courts of Arizona and Nevada. For cases on direct appeal, new constitutional rules automatically apply retroactively. For successive habeas petitions, new rules are not retroactive unless expressly made so by the Supreme Court. For first-time habeas petitioners, the first question a court must answer to determine whether to apply retroactively a new constitutional rule is whether it is substantive or procedural. If it is found to be substantive, the inquiry ends there and the rule is applied retroactively. The way to distinguish these two types of rules, the Summerlin decision said, is to determine whether the rule merely “impacts the operation of the criminal trial process” or whether it “alters the scope or modifies the applicability of a substantive criminal statute.” Other courts have found other words to draw this distinction, but there is scant disagreement among experts that no court has found the magic words, and the concepts remain vexing to practitioners. The 9th Circuit found that “ Ring rendered Arizona’s substantive capital murder statute unconstitutional [and] effected a redefinition of Arizona capital murder law,” making Ring a substantive rule. The 11th Circuit raised the possibility of Ring being a substantive rule only to summarily dismiss the idea. Then it analyzed Ring to see if it fell within the general nonretroactivity rule enunciated in Teague v. Lane, 489 U.S. 288 (1989), or fell within one of its few and stringent exceptions. It found that Ring met the rule, not the exceptions. But the Summerlin court found that even if Ring were a procedural rule it “requires the observance of those procedures that are implicit in the concepts of ordered liberty” and thus falls within a Teague exception. To meet the requirements of this exception, the “watershed rule . . . must seriously diminish the likelihood of obtaining an accurate conviction” and “must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” The 9th Circuit found that fact-finding by a jury would heighten accuracy: “Depriving a capital defendant of his constitutional right to have a jury decide” eligibility for the death penalty “is an error that necessarily affects the framework within which the trial proceeds.” “We think the court’s mistaken,” Todd said. “We do not believe that juries are inherently more accurate than judges in resolving questions of fact and it’s not such a bedrock change that it’s essential to the fairness of these proceedings.” Ring extended Apprendi v. New Jersey, 530 U.S. 466 (2000) to capital cases. Apprendi held that defendants are entitled to a jury determination of any fact that can increase maximum punishment. No circuit court, including the 9th, has found Apprendi to be retroactive. The 9th Circuit distinguished Ring from Apprendi. It finds that Ring defines capital murder as distinct from first-degree murder, while Apprendi merely addressed a sentencing scheme. Post’s e-mail address is [email protected].

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