Summerlin v. Stewart may not end up before the Supreme Court until April, but ASU students got a sneak peak Monday night as lawyers for both sides presented their arguments in the Great Hall at the College of Law. John Todd, an Arizona deputy attorney general, and Ken Murray, an assistant federal public defender, gave rough oral arguments before a crowd of about 200 in preparation for yet another strange chapter in Arizona's capital case history.
It has now been almost two years since another Supreme Court case, Ring v. Arizona, invalidated the state's death penalty statute whereby judges, not juries, heard sentencing evidence to determine if death is warranted. The court ruled this violated the Sixth Amendment rights of the accused to jury trials. Summerlin's case hopes to answer the question of whether the Ring ruling should be retroactive to the 88 inmates on Arizona's death row who have already exhausted their appeals -- the Arizona Supreme Court said it should not while the 9th Circuit Court of Appeals said that it should.
Todd, arguing on the state's behalf that re-sentencing would be costly and time-consuming, maintained that a line must be drawn somewhere. He further argued that because the change in sentencing was procedural, it should not be retroactive and that any reasonable jury would find the same aggravating factors warranting death as the judge did in 1983.
That last point is particularly salient as the Phoenix New Times reported last summer that since Arizona juries have taken a role in capital sentencing they have been much more likely to give a death sentence than judges.
As Murray pointed out, however, in Warren Summerlin's case the certainty that a jury would rule the same as the presiding judge, now disbarred Philip Marquardt, is markedly less. You see, Marquardt was an admitted pothead convicted for possession in Texas and almost certainly high throughout most of Summerlin's trial. Oh, and Summerlin's attorney slept with the prosecutor.
As for Summerlin himself, the man's deficient mental state kept him from understanding most of the proceedings and likely contributed to his brutal 1981 rape and murder of a woman in Tempe.
The real kicker is that Summerlin's defense voiced identical arguments to Ring's in the appellate process but received unfavorable rulings. Because the Sixth Amendment right to a jury trial is hardly a new one, the state's reasoning that jury sentencing is a minor procedural change seems to downplay the denial of guaranteed rights.
Further irregularity regarding this issue lies in the 1990 Supreme Court decision in Walton v. Arizona. There, the court upheld Arizona's sentencing by judges as constitutional. Ring's case only came about because of a 2000 hate crime case in New Jersey where the Supreme Court contradicted itself by finding that a jury, not a judge, must hear aggravating factors that are elemental to the nature of the crime.
Confused yet? Well don't worry, so is the Supreme Court. Hence, Arizona finds itself going through the same legal hoops over and over again.
Interestingly, the statute that spawned this great debate was written some 30 years ago by none other than Judge Rudy Gerber, a faculty member affiliated with the School of Justice Studies here at ASU. Judge Gerber authored the statute now deemed unconstitutional at the behest of then Senator Sandra Day O'Connor who, according to Gerber, asked him to "write a death penalty statute we could live with."
Scott Phillips is a justice studies senior. Reach him at scott.phillips@asu.edu.
