Death sentences by judges: Should they be thrown out?

In accord with Arizona law, following the jury's guilty verdict the trial judge was required to weigh any aggravating or mitigating circumstances to determine whether a death sentence was appropriate. The judge found no mitigating circumstances and two aggravating circumstances. He ruled that death was an appropriate punishment because the crimes had been committed under especially cruel or heinous circumstances. (Ms. Bailey's skull was crushed.) The judge also found that Summerlin had a prior felony conviction.

"There is no question about his guilt here," says Todd. He says the Supreme Court's earlier decision in Ring should be applied retroactively only if it would result in a different outcome. Otherwise, he says, "No one benefits - not the defendant, not the justice system, not society as a whole."

In his brief to the court Todd writes: "The Ring rule does not qualify for retroactive application ... because it does not implicate the accuracy or fairness of capital sentencing proceedings."

He adds, "Ring did not change what is to be decided, but only who decides - a fair and impartial judge, or a fair and impartial jury."

Summerlin's lawyers disagree. Rather than a procedural rule, the Supreme Court opinion created a substantive change in the law that mandates retroactive application, they say. All death sentences issued by judges rather than juries are unconstitutional, Summerlin's lawyers say.

Involvement of a jury at sentencing injects additional safeguards into the capital punishment system, they say, and the Constitution demands no less.

"Even if each of these defendants were ultimately sentenced to death [by juries], at least their sentence would be constitutional," says Michael Burke, an Arizona federal public defender and member of the Summerlin defense team.

"The Sixth Amendment to the Constitution guarantees a right to a jury trial, and these individuals were denied that fundamental right," adds Mr. Baich.

Five federal circuit courts of appeals (the Fifth, Seventh, Eighth, 10th, and 11th) and five state supreme courts (Arizona, Nebraska, Alabama, Georgia, and Nevada) say the Ring decision is not to be retroactively applied. Some said if the US Supreme Court intended to apply its opinion retroactively, it would have said so.

But other judges have ruled differently. The Missouri Supreme Court, a federal judge in Nebraska, and the Ninth US Circuit Court of Appeals in San Francisco have ruled that the Ring decision should be applied retroactively. It is the Ninth Circuit's ruling that is before the high court.

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