On Tuesday, September 2, 2003, the Ninth Circuit Court of Appeals issued its ruling on the retroactivity element of the Ring case. An "en banc" panel decided 8-3 in the case of an Arizona Death Row prisoner Warren Summerlin (Summerlin v. Stewart No. 98-99002) and the result was to overturn approximately 100 death row sentences in Arizona, Idaho and Montana. It granted retroactivity from the Ring case thus requiring all these prisoners to be resentenced by a jury because they had all previously been sentenced to death by a judge. The U.S. Supreme Court had ruled on the issue in June 2002, in the Ring v. Arizona case No. 01-488. But they had not answered the retroactivity aspect of the case.

The Ring case was based on Apprendi v. New Jersey 530 US 466 (2000). Ring challenged Arizona's sentencing scheme claiming it violated the Sixth Amendment's jury trial guarantee by entrusting to a judge the finding of a fact that raises the defendant's maximum penalty. In Arizona, the law allowing a judge rather than a jury to do the sentencing had been governed by Walton v. Arizona 497 US 637 (1990), but this case was overturned by the U.S. Supreme Court's decision in Ring.

Around the same time, the State of Arizona requested an "en banc" hearing before the entire Ninth Circuit to review a sub-panel decision granting Summerlin a new evidentiary hearing. Summerlin's hearing was to determine the competency of Judge Philip Marquardt because of allegations that Marquardt was under the influence of marijuana when he sentenced Summerlin to death. Marquardt had twice been convicted of marijuana violations and at his disbarment hearings he admitted that he had been addicted to marijuana for 16 years while on the bench. The "en banc" review was granted, and since Summerlin had also raised the vital Ring issue in his appeal, the Ninth Circuit would also decide the retroactivity issue of Ring .

The issue of retroactivity was at point here. This can be a very tricky subject to explain. There are rules that govern the application of complicated and technical doctrines of newly announced constitutional principles to achieve retroactivity. And extra care is given to procedures imposing the death penalty. New substantive rules announced by the Supreme Court generally apply retroactively whereas new procedural principles are retroactive only if they are so major that they are considered "watershed rules" that both "alter our understanding of the bedrock procedural elements" and "without which the likelihood of an accurate conviction is seriously diminished."

In his concurring opinion, Judge Reinhardt wrote separately to say that beside the technical decisions, it is all rather straightforward. "Executing people because their cases came too early because their appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions regarding life and death in capital cases - is surely arbitrariness that surpasses all bounds."

The three dissenting judges stated that the Ring decision should not be retroactive because it was neither a new substantive rule nor a fundamental alteration of a procedural one. Also they pointed out that three other Federal Circuit courts had ruled against Ring retroactivity.

So, where do we stand now? The State will submit a writ of certiorari appeal to the U.S. Supreme Court, asking them to review the Ninth Circuit Court decision. The Supreme Court can refuse the appeal and the Ninth Circuit decision stands, or they can elect to accept the case. If they accept the case, the earliest we can have a decision would be February 2004 or the latest, June 2004. If the Supreme Court upholds the retroactivity decision of the Ninth Circuit, the State of Arizona will then have some major decisions to make. (Update: The US Supreme Court has accepted this appeal. We will not have an answer until June 2004.) Will they decide to empanel new juries for all these cases and try to locate evidence and witnesses, many who have moved or are deceased, or will they elect to offer life sentences to all? The newer cases are subject to a sentence of Life Without Parole, while the older cases are simply life - defined 25 years to life. It is possible that some of us would be eligible for release since we have already served the required years of a life sentence. This worries many in the outside world.

It is estimated that it would cost around $27 million to resentence all of us. Money the State does not have. They also lack the huge number of attorneys it would take to handle this caseload. Another serious problem is that for each resentencing, a mitigation specialist is required to do a work-up of all the pertinent mitigation. There are only two qualified mitigation specialists in Arizona. There are more questions than answers.

One thing is certain - within a few months we may begin to emerge from the limbo we have been in for so many years and we may have a better idea as to whether or not we have a ‘future.’ It has been a long and winding road full of surprises and many disappointments that have brought us to this point.

I keep asking myself, "Can this really be the time when we may be able to get off the slow train to nowhere?" The conductor is lurking in the shadows and may soon punch our tickets granting passage to a new life.

© Richard Rossi 50337   Death Row September 5, 2003