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WASHINGTON — The U.S. Supreme Court appeared wary Monday of opening the door to retroactive application of its 2002 ruling that said judges, not jurors, should determine the facts that lead to death sentences. During oral arguments in Schriro v. Summerlin, 03-526, several justices wondered aloud whether making the 2002 ruling in Ring v. Arizona retroactive would also necessarily lead to applying Apprendi v. New Jersey retroactively to a broad range of criminal cases. The 5-4 Apprendi ruling in 2000 first established the principle that, under the Sixth Amendment, jurors must have the responsibility of determining the facts that result in increased sentences. Briefs before the Supreme Court indicate that if Ring is made retroactive, the cases of 110 other death row inmates nationwide will be affected, all from states with statutes that give judges fact-finding duties in capital cases. That group includes 86 prisoners in Arizona, 15 in Idaho, five in Nebraska and four in Montana. But if the earlier Apprendi ruling is made retroactive — an unlikely prospect — the impact would be far broader. Justice Stephen Breyer asked at one point on Monday if strict interpretation of the court’s rules on retroactivity in this case would “let everyone out of prison.” And Justice Ruth Bader Ginsburg also asked Ken Murray, the assistant federal public defender who represented Arizona death row inmate Warren Summerlin, “If we agree with you, is Apprendi also retroactive?” Murray responded, “Maybe, not necessarily,” but then analyzed the case in a way that would in fact make Apprendi subject to the same analysis as Ring in most cases. Summerlin, convicted for the 1981 rape and murder of Brenna Bailey, has for more than 20 years included in his appeals the Sixth Amendment claim that the judge in his case should not have been the one to make the determination of heinousness that resulted in his death sentence. His sentence came long before the Ring decision, but it was on appeal before the Ninth Circuit U.S. Court of Appeals when Ring came down. An en banc panel of the Ninth Circuit found that Ring applied retroactively because it wrought a substantive — not merely procedural — change, and was in fact a watershed decision that altered “bedrock” principles. The high court’s main ruling on retroactivity, the 1989 case Teague v. Lane, said only such “watershed” changes should apply to already-completed cases. Arizona, represented by Assistant Attorney General John Todd, argued before the Supreme Court that Ring was not substantive because it “did not change what is to be decided. The only change is who decides.” But Justice John Paul Stevens disputed that claim, asserting that Summerlin’s death sentence was imposed by an “unconstitutional procedure.” He suggested the high court had never allowed someone to be put to death following a proceeding that had been found unconstitutional. The federal government argued on the side of Arizona. James Feldmank, assistant to the solicitor general, told the Supreme Court that Ring also did not alter any “bedrock” principle. Feldmank said rulings such as Ring should only be applied retroactively if one could fairly look back at the previous proceeding and say, “This could not have been a fair trial.” He declined to state categorically whether retroactivity for Apprendi would follow a determination that Ring is retroactive. A coalition of states told the high court in a brief that making Ring retroactive would be detrimental to “society’s perception of justice and the finite resources of state legal systems.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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