Schriro, Dora, Dir., Arizona Dept. of Corrections v. Summerlin, Warren (06/24/2004)

Questions presented: 1) Did the 9th Circuit err by holding that the new rule announced in Ring v. Arizona is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989)? (2) Did the 9th Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague's exception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?

BY DEBORAH HIRSCH, MEDILL NEWS SERVICE

A bill collector showed up at Warren Summerlins Arizona home in 1982 seeking payment on a loan for a piano. But Summerlin didnt pay her.

He crushed her skull with numerous blows from a hatchet, sexually assaulted her and locked her dead body in the trunk of her car.

A trial judge sentenced Summerlin to death based on "aggravating" factors; that he had been convicted for violent felony before and had committed this one in an especially cruel and heinous manner.

Summerlin tried to fight the ruling several times, arguing among other things that his attorneys romantic relationship with the prosecutor and the judges documented marijuana use had robbed him of adequate defense and decisionmaking.

The Arizona courts, including its Supreme Court, rejected his arguments. But while Summerlins federal habeas corpus appeal was pending, in June 2002 the U.S. Supreme Court made a decision that presented a sliver of hope.

In Ring v. Arizona, the Court decided that juries rather than judges had to decide what facts lead to criminal punishment including the death penalty. For Summerlin and about 100 other inmates across the country who were put on death row by judges, the retroactive application of this ruling could make them eligible for new hearings.

So, after more than 20 years in prison, Summerlin took his case to the 9th Circuit Court of Appeals. In September 2003, a divided 9th Circuit panel decided that the Ring decision applied to him.

Typically, courts have been loath to apply constitutional interpretations retroactively, in some measure because reversals are likely to open a flood of re-litigation years after the case is already stale.

But the 9th Circuit majority said Summerlin's case should be reopened because Ring made a substantive rather than a procedural change in the law.

According to Judge Stephen Trott, who wrote the court opinion, Summerlin was correct to assert that the judges marijuana use prevented him from "impartial and mentally competent" due process of law something especially important in a state like Arizona where judges control capital sentencing.

"Ones legal conscience simply recoils at the shocking thought that the due process clause of the Fourteenth Amendment is satisfied by a judge presiding over a criminal trial and making life or death sentencing decisions while under the influence of, or materially impaired by, the use of an illegal mind-altering substance," Trott wrote.

Judge Alex Kozinski agreed that everyone deserves a fair trial, but said Summerlin didnt present enough evidence to prove that drugs affected his judges ruling. The 9th Circuit's affirmation of Summerlin's claim opens the door for anyone to go fishing into a judges personal life, he said.

"Unless there is a substantial showing that the judge acted improperly while presiding in a particular case, we should provide no incentive for parties to go digging into a judges private life looking for proof of mental impairment," Kozinski wrote in dissent.

On Dec. 1, 2003, the U.S. Supreme Court accepted the case for review and limited review to the first two questions in Arizona's petition.

In its brief, the state of Arizona urged the Court not to apply Ring retroactively in cases such as these.

"The only thing that changed here is who decides," said John Pressley Todd, who represents Arizona. "The burden of proof hasn't changed, what needs to be decided hasn't been changed."

Most states already follow jury decisions in capital sentencing, but several, including Arizona, Idaho, Montana and Nebraska, had to change laws or give new sentencing hearings for cases still on appeal.

Summerlins case could have even greater impact on the law than just capital punishment proceedings. The criminal sentencing changes established in Ring stem from a Courts 2000 decision in Apprendi v. New Jersey, holding that only juries can determine factors to increase sentences above required minimums. Both Ring and Apprendi were based on the 6th Amendment right to trial by jury, but neither addressed retroactivity.

If the Court upholds the 9th Circuit ruling in Summerlin, opponents worry that litigants will then want to re-evaluate all judge-imposed sentences exceeding minimum requirements. Retroactivity could be taken even further into other aspects of law, spurring a torrent of re-trials.

"The pragmatic penalty of Apprendi being retroactive is significantly more. You're talking about huge numbers of cases and no one today has deemed that is necessary," said Kirk Brown, an assistant attorney general for Nebraska who is heading an amicus brief on behalf of 16 states.

Summerlins supporters say the ruling is too narrow to be applied that broadly, however. Plus, the 9th Circuit has already denied retroactive application of Apprendi in past rulings, according to Mike Burke, a federal public defender for Summerlin.

All the more reason, they argue, why Ring should be applied retroactively to those on death row.

"The rights of the people on death row in Arizona were violated because they were denied jury fact finding in their case," said Dale Baich, on Summerlin's defense. "Fairness dictates that if these individuals had an unconstitutional sentence that they should be able to go back and receive a new sentencing hearing."

The 9th Circuits interpretation of Ring also directly conflicts with other rulings in the state supreme courts of Nevada and several federal appellate courts.