Nearly 90 inmates in Arizona were illegally sentenced to death, the 9th U.S. Circuit Court of Appeals ruled Tuesday in a decision that could lead to each having his or her sentence reconsidered by a jury.
The divided court rejected arguments that only convicted murderers who had not exhausted their direct appeals were entitled to be resentenced after the U.S. Supreme Court ruled last year that the state’s method of determining whether someone should be executed — using judges instead of juries — was unconstitutional.
The majority on the Circuit Court said anyone at any stage of the appeals process gets the same legal rights.
Judge Sidney Thomas, writing for the 9th Circuit majority, said last year’s high court ruling "altered the fundamental bedrock principles applicable to capital murder trials." That, he said, was a substantive change in Arizona law, and all those affected by the now-voided statute are entitled to the new protections.
Tuesday’s ruling most directly affects 88 inmates whose convictions and sentences of death have been upheld by the Arizona Supreme Court. But what happens now remains unclear.
State Attorney General Terry Goddard said the case will be appealed to the U.S. Supreme Court. He said if it is not overturned, each of the death row inmates will be entitled to ask to be resentenced, this time by a jury as required by law.
But Dale Baich, the federal public defender for Arizona, said Tuesday’s ruling means that none of the inmates will ever be executed.
Instead, he said, all are entitled to be automatically sentenced to life in prison.
In fact, prosecutors and defense lawyers can’t even agree on the number of convicted murderers affected. Baich puts the tally at 94 but had no specific list. A handful of cases in Montana and Idaho, states also under the 9th Circuit that had sentencing laws similar to Arizona’s, also may be affected.
Tuesday’s decision also drew fire from prosecutors in Arizona’s two largest counties.
Barnett Lotstein, a chief deputy attorney for the Maricopa County Attorney’s Office, which handled 39 of the cases in question, pointed out that other federal appeals courts looking at the same issue have reached a contrary conclusion. Lotstein said he presumes the U.S. Supreme Court will restore the death sentences.
Goddard said if the ruling is not overturned, that would mean expensive and timeconsuming new "mini-trials," in which jurors would be selected to determine if the facts of the case merit execution or life in prison.
More immediately affected, he said, are the survivors of the murder victims who face the prospect of reliving events that they thought were settled as long ago as two decades.
"It’s tragic to see the lack of closure that this (ruling) implies," he said.
The list includes people convicted of some of the most notorious crimes in recent Arizona history. Among them is Donald Beaty, who was sentenced to die for the 1984 murder of 13-year-old Christy Ann Fornoff, who was abducted and killed as she collected money on her newspaper route in Tempe. Also on the list is Richard Rossi, sentenced for the 1983 beating and murder of Scottsdale resident Harold August during a burglary. Debra Milke, a Phoenix woman who was sentenced for persuading two men to shoot and kill her 4-year-old son after telling him they were taking him to see Santa Claus in 1990, also is among them.
Tuesday’s decision is an outgrowth of last year’s U.S. Supreme Court ruling, which concluded that all elements of a crime need to be decided by a jury. That is critical in Arizona, where killing someone does not automatically make someone subject to the ultimate penalty. State law specified that once a jury finds someone guilty of homicide, the judge would determine if there are one or more "aggravating circumstances" that merit imposing the death penalty — a process the nation’s high court found constitutionally flawed.
The Legislature last year changed the law to let juries decide whether someone is sentenced to life behind bars or death, bringing the law into compliance with the ruling.
Earlier this year the state Supreme Court said about two dozen inmates whose convictions were still on appeal could petition for resentencing. Since then, the high court has set aside many death sentences imposed by judges, concluding that a jury presented with the same evidence might have reached a different conclusion.
The state justices said, however, that those whose direct appeals had been exhausted were too late. The justices said the U.S. Supreme Court was simply mandating a change in procedure, changes that are not retroactive. The 9th Circuit Court disagreed, saying the Supreme Court ruling did go that far.
The case before the 9th Circuit on Tuesday involved Warren W. Summerlin, convicted of the 1981 Phoenix murder of Brenna J. Bailey. She was an employee of a Tempe finance company who had come to his home to see if his wife could pay on a debt.
Inmates affected by ruling
Death row inmates from Maricopa County whose cases could be affected by the 9th U.S. Circuit Court’s ruling:
James V. Adams Donald E. Beaty William Bracy Robert C. Comer Michael E. Correll Richard K. Djerf Eugene A. Doerr Michael S. Gallegos Ernest V. Gonzales David Gulbrandson Charles M. Hedlund John A. Hinchey Murray Hooper Richard D. Hurles Eric J. King Kenneth J. Laird Jeffrey T. Landrigan Chad A. Lee Darrell Lee Scott Lehr Lawrence K. Libberton Samuel V. Lopez Ernesto S. Martinez III James E. McKinney Efren Medina Debra J. Milke Viva L. Nash David M. Ramirez Pete C. Rogovich Richard M. Rossi Sean B. Running Eagle Eldon M. Schurz Roger M. Scott Anthony M. Spears Clinton L. Spencer James L. Styers Warren W. Summerlin Robert C. Towery Ronald T. Williams