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.