Death row inmates must be re-sentenced, appeals court rules Victims' families upset that juries may have to re-sentence prisoners

David J. Cieslak

The Arizona Republic - Sept. 3, 2003 12:00 AM

A federal Appeals Court devastated victims advocates Tuesday while offering a glimmer of hope to nearly three-quarters of Arizona's death row inmates, ruling that they must be re-sentenced to die by juries or have their prison terms commuted to life behind bars.

The 9th Circuit Court of Appeals decision prolongs the contentious battle that followed last year's landmark U.S. Supreme Court ruling mandating that juries, not judges, must determine if aggravating factors exist to execute a criminal defendant.

Arizona Attorney General Terry Goddard, county prosecutors and crime victims advocacy groups decried the ruling.

Calling the decision "tragic," Goddard pledged to file an appeal with the U.S. Supreme Court, which is expected to hear arguments in the case next spring.

The ruling affects more than 100 prisoners nationwide, including inmates in Idaho and Montana.

Goddard stressed that in the meantime, the 88 Arizona inmates affected by the decision are staying on death row, though their sentences stand on shaky ground until the high court issues a ruling.

"This is very unfortunate for individuals who were victims of these crimes," Goddard said. "We were confident the decision would go the other way."
Case sparked debate
About half of the inmates affected are from Maricopa County, including Warren Summerlin, whose case sparked debate in the appeals court after he was sentenced to die for the April 29, 1981, sexual assault and killing of debt collector Brenna Bailey.

In 2001, the 9th Circuit Court ruled that Summerlin's sentence should be temporarily set aside amid allegations that the judge who sentenced him to death was under the influence of marijuana during the proceedings.

Former Judge Phillip Marquardt of Maricopa County Superior Court admitted to being addicted to the drug, but he denied he was intoxicated during Summerlin's trial. Summerlin declined to be interviewed about the ruling.

Federal judges hearing Summerlin's case agreed to wait for the U.S. Supreme Court ruling, which came in June 2002. For 30 years before the high court's ruling, judges in Arizona had been deciding the factors that qualify a criminal defendant for the death penalty.

In Tuesday's case, the appeals court was asked to decide whether the Supreme Court ruling should apply retroactively, granting relief to inmates who are sitting behind bars and finished with their direct appeals process.

Supreme Court justices had left that issue unresolved, forcing state legislators to vote on new sentencing procedures for their courts.
Appeals courts mixed
Three other federal circuit courts have ruled that the decision should not be retroactive, a key factor that will bolster Arizona's appeal to the Supreme Court, Goddard said.

Defense attorneys have argued that all inmates on death row should be given an equal chance to have 12 jurors decide whether they should die. A federal public defender in Phoenix called the decision "fundamental justice."

Eric Larsen, a Tucson-based defense attorney who has tried a dozen death penalty cases, said he fears the Supreme Court will reverse the appellate court's decision.

"When you're talking life and death, every opportunity should be afforded to the accused," Larsen said. "Everyone who was judged by the old law ought to have the same opportunity, especially when it's for these kind of stakes."
Still seeking closure
But victims rights advocates called the ruling a slap in the face, saying the justice system has denied them an opportunity for closure and betrayed their loved ones.

"It's re-victimizing us, putting us through the same thing again," said Mark Milke, whose ex-wife was convicted of killing their 4-year-old son in a grisly 1989 shooting in a desert area near Phoenix.

"It's bad enough we don't ever get closure, but to have to be re-victimized through the judicial system a second time is adding more insult to injury," said Milke, who serves on the board of the Valley of the Sun chapter of Parents of Murdered Children.
An expensive decision
Fearing Supreme Court justices will side with the appellate judges, prosecutors say the litany of re-sentencing hearings will cost millions of dollars and leave attorneys scrambling to re-create decades-old cases.

In addition, prosecutors say some cases will be difficult to re-sentence because of outdated evidence and witnesses who have disappeared or died.

"We will have to make a decision on each case on an individual basis as to whether or not to pursue re-sentencing," said Barnett Lotstein, special assistant at the Maricopa County Attorney's Office. "The objective is justice."

A dozen Arizona defendants already have been sentenced by juries since the high court's decision last year. Ten received death sentences while two were given life terms, said Kent E. Cattani, chief counsel in the attorney general's capital litigation section.

Gov. Janet Napolitano declined comment on the case through a spokeswoman, who said Napolitano had not reviewed the ruling.

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