Justices debate whether death penalty ruling can be retroactive
Case could lead to more than 100 death row resentencings
By Bill Mears
CNN Washington Bureau
WASHINGTON (CNN) -- The Supreme Court on Monday used an unusual death penalty case to revisit a previous ruling on where the authority rests to sentence convicted murderers to death.
The case is a follow-up to their 2002 ruling that juries, not judges, must be the ones to impose death sentences on convicted killers. (The 2002 ruling)
The high court now must decide whether that ruling can be applied retroactively. More than 100 death row inmates could have their sentences thrown out and receive new hearings if the court decides their 2002 decision can be applied retroactively.
The old ruling by the Supreme Court forced five states -- Arizona, Montana, Idaho, Colorado, and Nebraska -- to change laws that gave judges the sole power to decide the punishment. Five other states had laws using a combination of judges and juries.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled in September that Arizona inmates sent to death row by judges prior to the Supreme Court ruling should have their sentences commuted to life in prison. (Federal appeals court ruling)
Lawyers for Warren Summerlin, a convicted killer on Arizona's death row, said Monday their client has been trying for two decades to have his sentence imposed by a jury. Public defender Ken Murray said the "unique aspects" of the death penalty should apply to all such sentences imposed previously by a judge.
"Juries really do make a difference," Murray told the court. "Judges are human, they have human frailties. They make mistakes."
But Justice Antonin Scalia responded, "And juries don't have frailties?"
Summerlin was convicted of the 1981 murder of Brenna Bailey, 36. Bailey's body was found in the trunk of her car a day after she went to Summerlin's Arizona home to collect money on a loan.
During its ruling last year, the federal appeals court called it "the raw material from which legal fiction is forged." Officials learned that an anonymous tip pointing police to Summerlin came from his wife, who said she had a psychic premonition. One of Summerlin's own lawyers admitted to an illicit "romantic encounter" with the prosecutor in the case that may have scuttled an ongoing plea agreement that was eventually dropped.
Additionally, the judge in the case lost his job after admitting to marijuana addiction and conviction.
The judge has maintained that he did not use drugs before the sentencing, The Associated Press reported.
Justices at odds during Monday debate
The judge cited "aggravating" factors in imposing a death sentence for Summerlin. Lawyers for the Justice Department, arguing for the state, said, "A determination of the presence of an aggravating factor is in itself no different from a determination of the presence of any other fact in the case. There is no reason why a judge cannot be an accurate decision-maker on any such fact."
The justices appeared at odds in arguments Monday. Justice John Paul Stevens, an outspoken opponent of capital punishment, said Summerlin was "sentenced to death by an unconstitutional procedure."
But more conservative justices expressed some support for Arizona officials, who argued there were no aggravating standards that would "make any defendant ineligible for the death penalty," according to state prosecutor John Todd.
The Supreme Court normally is sharply divided on the death penalty question. Four justices -- Stevens, David Souter, Stephen Breyer, and Ginsburg -- have publicly condemned the practice of executing those under age 18 at the time of their crimes. The court in recent years also outlawed executing the mentally retarded, but by a 6-3 margin in 2002.
The justices this term have examined the role all-white juries and inadequate legal representation can play when death row inmates are appealing their sentences.
A ruling in the Summerlin case is expected by early July. The case is Schriro v. Summerlin, case no. 03-0526.
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Associated Press contributed to this report.
