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Forget the stoner judge and the fact that Warren Summerlin’s first defense lawyer hooked up with the prosecutor. It was Summerlin’s incredibly bad lawyer that gave the Ninth Circuit reason to jettison Summerlin’s death sentence Monday in an en banc ruling. By not inquiring into Summerlin’s history of mental illness — and by failing to point out that his client was illiterate, functionally retarded and a diagnosed schizophrenic — Arizona defense lawyer George Klink “utterly failed in his duty to investigate and develop potential mitigating evidence for presentation at the penalty phase,” Judge Sidney Thomas wrote for a 10-1 panel. Klink failed to tell the court about “Summerlin’s tortured family history, including the fact that Summerlin’s alcoholic mother beat him frequently and punished him by locking him in a room with ammonia fumes,” wrote Thomas. Also, Klink never pointed out that his client received repeated electroshock treatments, had a severe learning disability, was illiterate and was prescribed anti-psychotic drugs. As a result, the decision — from which Judge Diarmuid O’Scannlain was the lone dissenter — ordered the case back to an Arizona trial court, where a jury may be convened to resentence Summerlin. “This is a case where if you wrote it as a movie, people would say it’s unbelievable because it couldn’t happen this way,” said Kenneth Murray, the assistant Arizona federal defender representing Summerlin. Indeed, the details of the case read more like a country song about a soap opera plot than anything Hollywood could think up. Even before Summerlin ended up on Arizona’s death row in 1982 for sexually assaulting and murdering a woman who came to his house to collect a debt, his case was a strange one. Before his trial, Summerlin’s defense lawyer and the state prosecutor abandoned the case after they had a one-night stand. And years after Summerlin’s conviction and sentencing by Maricopa County Superior Court Judge Philip Marquardt, the judge was arrested in Texas on marijuana charges. In 1991, Marquardt was forced to leave the bench after being convicted on another pot charge, leading to a series of habeas corpus filings that resulted in the case’s first visit to the Ninth Circuit. In 2001, a three-judge Ninth Circuit panel upheld Summerlin’s conviction, but ordered an evidentiary hearing into whether Marquardt was stoned at the time of sentencing. In that case, Thomas wrote a partial dissent, making essentially the same argument that he makes in the en banc opinion: that the lawyer’s conduct alone requires the sentence to be thrown out. Before the evidentiary hearing could be held, the U.S. Supreme Court ruled in 2002′s Ring v. Arizona, 536 U.S. 584, that only a jury, and not a judge � even if he was not stoned � could issue a death sentence. The Ninth Circuit then granted en banc rehearing to Summerlin and ruled that Ring applied retroactively. But the Supreme Court then reversed that decision on the grounds that Ring did not apply retroactively to cases like Summerlin’s, where a sentence was final on direct review. That ruling sent Summerlin back to the en banc panel to settle his remaining claims: that the bad attorney, the stoner judge, the lascivious lawyers and the cumulative effect of those errors should require a reversal of the sentence. John Todd, who argued the case for the Arizona attorney general, said he was disappointed by the ruling. “The dissent said it all,” he said. O’Scannlain’s partial dissent argued that the case’s various problems did not warrant reversing the sentence. “Twenty years ago, what his defense lawyer did was kind of the normal thing.” Todd said he sees the decision as particularly wasteful because, if the case does go back to an Arizona jury, Summerlin may be resentenced to death. “It’s certainly a burden on the state,” he said, adding that his office will decide within the next 90 days whether to try bringing the case to the Supreme Court for a second time. If it does � or if a jury reaffirms the execution order � defender Murray said he is convinced that the stoned judge and lawyerly liaison provide fodder for yet another challenge or two. And if that were to happen, the Ninth Circuit judges won’t be surprised. “Extraordinary plot lines rarely end,” Thomas wrote in Monday’s opinion. “They frequently reappear in sequels.” The case is Summerlin v. Schriro, 05 C.D.O.S. 9041.

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