Excerpts from the Recent 9^th Circuit’s opin­ion in Summerlin v. Stewart regard­ing the role of juries in death penal­ty cases

The following are excerpts from Summerlin v. Stewart, No. 98-99002 (9th Cir. Sept. 2, 2003):
(page numbers refer to the on-line version; subheads are not part of the decision)

THE ISSUES

In short, now that the Supreme Court has decided that Timothy Ring’s capital murder conviction must be vacated because the judge was constitutionally disqualified from deciding whether Ring was eligible for the death penalty, the question is whether others who received the same constitutionally infirm sentence, including those who previously raised the identical issue, are eligible for the same relief or whether they should remain subject to execution. -at 12736

HIGHEST SCRUTINY NEEDED

If there is any place in which adherence to evidentiary rules, constitutional restraints, and the defendant’s confrontation rights is paramount, it must be when the defendant is exposed to the penalty of death. Subjecting penalty-phase presentations to the rigors and restrictions of a jury trial necessarily will improve the quality of presentation and diminish the risk of an erroneous verdict. -at 12766

JURIES V. JUDGES

Most jurors in capital cases will never sit on another case in which the death penalty is sought. Judges, by contrast, confront death penalty cases on a regular and sometimes routine basis in Arizona. For instance, Judge Marquardt, who sentenced Summerlin to death, imposed capital punishment on James Fisher in a separate case on the same day. A reasonable inference from the habituation brought about by imposing capital punishment under near rote conditions is that a judge may be less likely to reflect the current conscience of the community and more likely to consider imposing a death penalty as just another criminal sentence. Indeed, when questioned about another capital case in which his judgment was being assailed because he purportedly slept through portions of the short penalty-phase hearing, Judge Marquardt answered that he was unable to recall the case, but “said he had no doubt that the death penalty was warranted.” Adam Liptak, Judge’s Drug Use at Issue in 2 Death Sentences, N.Y. TIMES, May 16, 2002, at A1. “These guys have sentenced themselves,” he is reported to have said. Id. -at 12768

DRUG-IMPAIRED JUDGE

If the allegations concerning Judge Marquardt are true, Summerlin’s fate was determined by a drug-impaired judge, habituated to treating penalty-phase trials the same as noncapital sentencing, who relied upon inadmissible evidence in making the factual findings that sentenced Summerlin to death. Although no system is perfect, relying on a jury to administer capital punishment unquestionably reduces the risk of error by reposing trust in twelve individuals who must agree as to the presence of aggravating factors beyond a reasonable doubt, whose continued job security is not threatened by their decision, and whose consideration is based solely on admissible evidence subject to the rigors of crossexamination. -at 12771

EXTENT OF DECISION

In short, Ring directly impacted the substance of approximately one-fourth of the 38 state capital murder statutes and established irreducible minimum structural requirements for all. It fundamentally altered our view of how the Sixth Amendment right to a jury trial affected the Eighth Amendment’s requirement that state statutes narrow the class of individuals eligible for the penalty of death. By deciding that judges are not constitutionally permitted to decide whether defendants are eligible for the death penalty, the Supreme Court altered the fundamental bedrock principles applicable to capital murder trials. When viewed in both theoretical and practical terms, Ring redefined the structural safeguards implicit in our concept of ordered liberty. -at 12779

FROM THE CONCURRENCE: “Arbitrariness that surpasses all bounds”

Few seriously doubt that the death penalty is generally imposed in an arbitrary manner in this nation. The vagaries of the process by which prosecutors select those they believe worthy of death; the chances that defendants will be assigned incompetent rather than competent legal counsel, and that such representation will continue throughout the state and federal direct and collateral proceedings; the fortuitous circumstances which in combination account for the fact-finders’ decisions in capital proceedings as to who shall live or die: all result in a system of execution by chance or fate. And this is wholly aside from factors such as race, IQ, poverty, wealth, geography, and sex, each of which plays a significant part in the business of determining which persons the state decides to execute.

But surely there is a limit to arbitrariness — even to arbitrariness in the imposition of the death penalty. And 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. -at 12781 (Reinhardt, J., concurring)

Read the 9th Circuit’s decision. Read excerpts from articles about the decision. See DPIC’s Ring v. Arizona Web page.