Death penalty clarification due

Anne Gearan

Monday, Dec. 1, 2003 | 11:13 a.m.

WASHINGTON -- The Supreme Court said today it will clarify the impact of its ruling last year that juries, not a judge, must decide if a convicted killer lives or dies.

The high court forced changes in the death penalty laws of five states in 2002 because those states gave judges the final say. But the court did not make clear how its ruling should apply retroactively to inmates already on death row.

Lower courts have divided over that question, which affects more than 100 death row inmates, and the Supreme Court has agreed to clear up the confusion.

Separately, the court agreed to hear an appeal from an Alabama death row inmate who claims execution by lethal injection would be unconstitutionally cruel because of his medical condition. He is on death row for a 1978 murder.

In the larger case about the extent of its ruling on judges and juries, the high court agreed to review the case of an Arizona man convicted of raping and killing a collection agent in 1981. Warren Wesley Summerlin had spent more than two decades on death row when a federal appeals court overturned his death sentence earlier this year.

The 9th U.S. Circuit Court of Appeals said its ruling stemmed from the earlier Supreme Court case, Ring v. Arizona, and that the high court's reasoning in the Ring case should apply retroactively to other death row inmates who had exhausted their direct appeals.

Other state and federal appeals courts had ruled the other way.

The high court will hear both death penalty cases in the spring, with rulings expected by the end of June.

In the Ring case, a 7-2 majority of the Supreme Court ruled that juries, not judges, must make the crucial decisions that send someone to death row.

The ruling invalidated the death sentence laws of Arizona, Montana, Idaho, Nebraska and Colorado and called into question whether 168 inmates then on death row in those states would be put to death. The Ring ruling also cast doubt on death sentences imposed in four additional states, including Nevada, that used a combination of juries and judges to impose the death penalty.

The Constitution guarantees a trial by a jury, and that right would be "senselessly diminished" if jurors did not also weigh whether a particular killing merits death or life in prison, the court said in the 2002 case.

The Nevada Supreme Court has ruled the decision on death penalty cases is not retroactive when the person is challenging his conviction and sentence through a writ or "collateral review."

The 2003 Legislature changed Nevada law so that juries, instead of three-judge panels, would decide if the death penalty should be handed down. And if juries could not reach a unanimous decision, the judge who presided over the case would sentence the defendant to life without the possibility of parole.

The state attorney general's office said there are 14 inmates on death row whose sentences were set by a three-judge panel. Of those, as many as six came after a jury was unable to decide the penalty.

Immediately after the Ring ruling it was unclear how many inmates already on death row could use the case to argue that they deserved a new sentencing hearing. Lawyers and state prosecutors correctly predicted a wave of litigation over the issue. In Arizona alone, dozens of death row inmates have argued that their sentences should be overturned.

The 9th Circuit ruling affects 88 inmates on Arizona's death row, the state attorney general said. The ruling may also affect 15 death row inmates in Idaho and five in Montana.