The Hot List case of the week is the decision of the Ninth Circuit sitting en banc, 8-3, inSummerlin v. Stewart. Summerlin holds that Ring v. Arizona is retroactive. The Summerlin Court gave two alternative rationales for its holding in light of Teague. The first holding was that as Ring is a rule of substantive criminal law and not merely procedural. As a second, alternative basis, the Court held that it comes within the second Teague exception. The Court's decision effectively will mute a much thornier issue relating to judicial misconduct (the trial judge being stoned during the sentencing). The case impacts roughly 100 cases in the Ninth Circuit. This case is a strong cert candidate as there now appears to be a split in the lower courts on the issue of retroactivity. Judge Reinhardt's stunning concurrence is the topic of the "Focus Section" this week. Due to the length of the quoted opinion, the Hot List section follows the losing cases.

Two other notable wins are also reported below. The California Supreme Court inPeople v. Heardvacated the imposition of death in light of a grossly deficient llife/death jury qualification process In Clemons v. Alabama the Alabama Court of Criminal Appeals ordered a remand on a mental retardation challenge in light of Atkins v. Virginia.

In other news a new piece of scholarly literature examining the interplay of execution dates and politics by Jeffrey Kubik and John Moran of Syracuse University notes that executions, especially those of African-Americans, noticeably rises during gubernatorial election years. Lethal Elections: Gubernatorial Politics and the Timing of Executions, 46 The Journal of Law & Economics 1 (2003). In a less scholarly piece, but perhaps more intriguing, Mark Fuhrman, of O.J. Simpson fame, has written a book entitled Death and Justice : An Expose of Oklahoma's Death Row that blasts the way the death penalty is currently imposed and apparently concludes with calls for a moratorium & gutting of the current practice of death penalty prosecutions. Finally, the NAACP Legal Defense Fund's latest edition of "Death Row USA" notes a marked drop in the number of people currently under a death sentence with only eight jurisdictions seeing an increase in people's on the row, Alabama, Arizona, California, Missouri, Nevada, Oregon, Virginia, and the Federal Government.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

August

3 Paul Hill Florida (volunteer)

Perry Austin's execution date (Sept. 8th) was withdrawn by the trial court. He had waived his appeals and sought the date, but has now decided to go forward with his habeas proceedings.

The following execution dates are believed to be serious:

September

10 Larry Hayes Texas

12 Henry Hunt North Carolina

24 Philip Workman Tennessee

26 Joseph Bates North Carolina

SUPREME COURT

The Court is in recess.

CAPITAL CASES(Favorable Disposition)

People v. Heard, 2003 Cal. LEXIS 6293, (Cal 8/28/03) Death sentence vacated as the trial court conducted a seriously deficient examination of a prospective juror during life/death qualifications & erroneously excused venirepersons for cause.

Arizona v. Prince, 2003 Ariz. LEXIS 110 (Az 8/25/2003) Reversed in light of Ring error not being harmless.

Smith v. Alabama, 2003 Ala. Crim. App. LEXIS 181 (Ala. Crim. App. 8/28/2003) Remand ordered to correct errors in judge imposed sentencing.

Clemons v. Alabama, 2003 Ala. Crim. App. LEXIS 217 (Ala. Crim. App. 8/29/2003) Remand ordered on mental retardation challenge.

CAPITAL CASES(Unfavorable Disposition)

Missouri v. Edwards, 2003 Mo. LEXIS 125 (Mo. 8/26/2003) Relief denied on multiple grounds, but most notably, on whether the trial court erred in determining that the striking of a male AfricanAmericans postal worker from the jury was not pretextual. The Court appears to stop just short of barring strikes based on one's profession.

[Our precedent] cites Slappy v. State, 503 So. 2d 350 (Fla. App. 1987), with approval. Slappy disapproved of the strike of a teacher on the basis of the prosecutor's belief that teachers tend to be liberal, because the prosecutor "did not show any connection between liberalism, schoolteaching and the particular jurors and facts of the case." Id. at 270. Moreover, a similarly situated white schoolteacher was not stricken. Butler itself disapproved of the strike of a potential juror on the basis that she was elderly and the prosecutor had another elderly person on a different jury who was easily intimidated. The court said that without a showing that this rationale applied to this elderly person, the reason given was pretextual. Butler, 731 S.W.2d at 271. Similarly, in finding an offered ground pretextual, Marlowe noted the low degree of logical relevance of the claimed rationale -- class action membership -- to the facts of the criminal case beforre it. Marlowe, 89 S.W.3d at 470.

Other judges, in Missouri and elsewhere, have also cautioned that courts should be especially careful in reviewing claims that a juror was stricken based on a particular occupation. In State v. Smith, 791 S.W.2d 744, 749 (Mo. App. E.D. 1990), the court rejected a challenge based on the juror's employment by the government, saying that the claim that the prosecutor had bad prior experiences with government employees was pretextual. In State v. Hudson, 822 S.W.2d 477, 481 (Mo. App. E.D. 1991), the court said "We recognize occupation related explanations are susceptible to abuse as the court in Smith found." In Hudson, however, the prosecutor was able to tie the prosecutor's strike of a postal worker based on his occupation to personal dealings with postal workers in his work and through his family. The court found this acceptable. Id.; see also Hernandez v. New York, 500 U.S. 352, 363-64 (1991) (holding that the disparate impact on a particular ethnic group of an asserted basis for exclusion is one indicator of discriminatory intent); United States v. Uwaezhoke, 995 F.2d 388, 392-93 (3d Cir. 1993) (discussing how to measure disparate impact and need to relate reason for strike to case).

Other Missouri cases approving striking a postal worker also considered additional reasons for the strike and whether the strike was applied to other similar jurors; the courts did not merely accept a strike based on the person's occupation as postal worker, per se. Thus, in Smulls, the person also was stricken based on her demeanor, and another person, not African-American, was struck for reasons similar to those for which the person in question was stricken. Smulls, 935 S.W.2d at 15-16. In Williams, the person was not stricken only because she was a postal worker, but also because she resembled the defendant in physical appearance and demeanor. Williams, 97 S.W.3d at 471.

In the future, trial courts should similarly consider strikes based on occupation carefully, assessing them for pretext by looking at whether the occupation and the claimed traits relate to the particular case or juror, whether similarly situated jurors are treated differently, and so forth, considering the factors set out above, and not allow a strike to rest solely on the claim that the juror is "a postal worker."

Reid v. True, 2003 U.S. App. LEXIS 17764 (4th Cir 8/26/2003) Relief denied on claims "that counsel were ineffective for (1) failing to investigate and advise Reid concerning a defense of voluntary intoxication; (2) failing to investigate and advise Reid regarding a defense of insanity; and (3) failing to advise Reid concerning the nature and consequences of an Alford plea;" that "he did not understand what an Alford plea was or that he could face the death penalty under such a plea;" and "the comments of the trial court indicate that it failed to consider the mitigating evidence Reid presented during the sentencing hearing, in violation of the Eighth Amendment."

Tennessee v. Leach, 2003 Tenn. Crim. App. LEXIS 724 (Tenn Crim App 8/25/2003) Relief denied on claims of sufficiency; admission of inflammatory photos and videotape; exclusion of the testimony of a defense rebuttal witness; denial of a a motion requesting a special instruction to the jury that all homicides are presumed to be second degree murder; jury instruction that permitted the jury to consider evidence of other crimes; victim impact testimony; life photographs of the victims; use of a "religious test" to exclude certain life scrupled jurors; felony murder & HAC aggravators, Apprendi/Ring; as well as proportionality.

Turner v. Alabama, 2003 Ala. Crim. App. LEXIS 206 (Ala. Crim. App. 8/29/2003) On return from remand relating to clarification of the weight given to mitigating and aggravating circumstances.

Adams v. Alabama, 2003 Ala. Crim. App. LEXIS 212 (Ala. Crim. App. 8/29/2003) (juvenile) Relief denied on claims including death qualifications of struck jurors; use of 80% of strikes by the State to remove female jurors; error in admitting certain photographs into evidence; chain of custody of certain evidence; admission of certain inculpatory statements; restriction on impeachment of a law enforcement officer on his prior convictions; comment on failure to testify; admission of DNA and other evidence; failure to give lesser included instructions; prosecutorial misconduct; jury instructions were incomprehensible on circumstantial evidence; proceeding on four counts of capital murder in one prosecution; cap on attorney fees; victim impact in the guilt phase; sufficiency; constitutionality of the state's sentencing scheme as it does not meet Ring; and proportionality.

Ohio v. Williams,2003 Ohio LEXIS 2188;99 Ohio St. 3d 439; 2003 Ohio 4164 (Ohio 8/27/2003) Relief denied most notably on claim that the trial court erred by refusing to suppress a videotaped confession Williams made while in police custody after waiving his rights to remain silent and to confer with an attorney. Williams' lawyers argued the confession should have been suppressed because an attorney, Alan Penamon, was at the scene of the arrest and immediately told police he represented Williams, followed him to the police station and asked to speak with his client before his client answered any questions. Also at issue was Williams competency and bad penalty phase instructions.

California v. Crew, 2003 Cal. LEXIS 6293 (Cal 8/25/2003) Relief denied, most notably, on the issues of guilt phase instructions; improper admission of evidence; prosecutorial misconduct; sufficiency of the special circumstances in the penalty phase and the overbreadth of the "financial gain" special circumstance.

HOT LIST

Summerlin v. Stewart, 2003 U.S. App. LEXIS 18111 (9th Cir 9/2/2003)(en banc) Ring is retroactively applicable for purposes of Teague. Please forgive the rather long reposting here, but the case is so posted as the analysis of Eighth Amendment law is especially noteworthy & the Teague analysis, likewise, may well be especially useful to habeas practitioners.

The first penalty-phase question presented to us is whether the Arizona death penalty statute, as applied to Summerlin, is unconstitutional in that it permits a judge rather than a jury to determine the elements necessary for a death sentence. The Supreme Court recently has held that Arizona's capital sentencing scheme was incompatible with the Sixth Amendment right to a trial by jury "to the extent that it allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Ring, 536 U.S. at 609. The Supreme Court did not decide whether the holding in Ring applied to petitioners, such as Summerlin, who raised the constitutional challenge in collateral post-conviction proceedings rather than on direct appeal. [*38]

Because the Warden has argued that Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), bars relief on this issue, we must decide whether Ring has retroactive application to cases on federal habeas review. Horn v. Banks, 536 U.S. 266, 272, 153 L. Ed. 2d 301, 122 S. Ct. 2147 (2002) (holding that the court of appeals erred by not performing a Teague analysis when the issue was "properly raised by the state") (citing Caspari v. Bohlen, 510 U.S. 383, 389, 127 L. Ed. 2d 236, 114 S. Ct. 948 (1994) ("If the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.") (emphasis in original)). n4

In short, now that the Supreme Court has decided that Timothy Ring's capital murder conviction must be vacated because the judge was constitutionally disqualified from deciding whether Ring was eligible for the death penalty, the question is whether others who received the same constitutionally infirm sentence, including those who previously raised the identical issue, n5 are eligible for the same relief or whether they should remain subject to execution.

The question of whether a newly announced constitutional rule will apply retroactively on collateral review is a relatively recent inquiry in American jurisprudence. As Justice Holmes observed at the turn of the century, "judicial decisions have had retrospective operation for near a thousand years." Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 54 L. Ed. 228, 30 S. Ct. 140 (1910) [*40] (Holmes, J., dissenting). At common law, the retroactivity question never arose because judges were believed to be discovering rules rather than declaring them. John C. Gray, The Nature and Sources of the Law 222 (1st ed. 1909). Even now, a presumption exists that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974). As the Supreme Court noted, "'Both the common law and our own decisions' have 'recognized a general rule of retrospective effect for the constitutional decisions of this Court.'" Harper v. Va. Dep't of Taxation, 509 U.S. 86, 94, 125 L. Ed. 2d 74, 113 S. Ct. 2510 (1993) (quoting Robinson v. Neil, 409 U.S. 505, 507, 35 L. Ed. 2d 29, 93 S. Ct. 876 (1973)).. . .

Importing Justice Harlan's analysis, Teague held that "unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310.

Teague also adopted Justice Harlan's two exceptions, providing that a new rule of criminal procedure would be retroactive if it "placed certain kinds of primary, private individual conduct beyond the criminal law-making authority to proscribe," or if the rule "required the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id. at 311 (internal quotation marks omitted). The Supreme Court explained that the second exception had two components, formulated by combining aspects from Justice Harlan's dissents in Desist and [*46] Mackey. The Court thus limited the exception for "watershed rules of criminal procedure" to those procedures that both "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction," id. (quoting Mackey, 401 U.S. at 693) (internal quotation marks omitted; emphasis added in Teague), and "without which the likelihood of an accurate conviction is seriously diminished." Id. at 313.

Before applying these concepts to the instant case, it is important to set the appropriate analytic framework. The threshold question in a Teague analysis is whether the rule the petitioner seeks to apply is a substantive rule or a procedural rule, because "Teague by its terms only applies to procedural rules." Bousley v. United States, 523 U.S. 614, 620, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). If the rule is procedural, the court then conducts a three-step analysis to determine whether Teague bars its application. See O'Dell v. Netherland, 521 U.S. 151, 156-57, 138 L. Ed. 2d 351, 117 S. Ct. 1969 (1997). First, the reviewing court "must ascertain the date on [*47] which the defendant's conviction and sentence became final for Teague purposes." Caspari, 510 U.S. at 390. Second, the court must survey "the legal landscape as it then existed," Graham v. Collins, 506 U.S. 461, 468, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993), to determine whether existing precedent compelled a finding that the rule at issue "was required by the Constitution." Lambrix v. Singletary, 520 U.S. 518, 527, 137 L. Ed. 2d 771, 117 S. Ct. 1517 (1997) (internal quotation marks and citations omitted). If existing precedent already required application of the rule, the Teague bar does not apply. If, by contrast, the procedure at issue is considered a new rule for Teague purposes, the court must proceed to the third step and determine whether either of the two announced exceptions applies. Teague, 489 U.S. at 307 (plurality). The presumption against retroactivity is overcome only if the new rule prohibits "a certain category of punishment for a class of defendants because of their status or offense," Penry v. Lynaugh, 492 U.S. 302, 330, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), abrogated [*48] on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), or presents a new "watershed rule of criminal procedure" that enhances accuracy and alters our understanding of bedrock procedural elements essential to the fairness of a particular conviction. Teague, 489 U.S. at 311 (plurality; citations omitted).. . .

In the context of substantive Arizona criminal law, however, Ring did more than answer a strictly procedural question. Thus, Ring is unlike Apprendi, in which the Supreme Court expressly declared that its decision had no impact on substantive criminal law, noting that "the substantive basis for New Jersey's enhancement is not at issue." 530 U.S. at 475. By important contrast, the substantive basis for Arizona's capital sentencing scheme was precisely at issue in Ring. n9 Ring rendered Arizona's substantive capital murder statute unconstitutional. More than a procedural holding, Ring effected a redefinition of Arizona capital murder law, restoring, as a matter of substantive law, an earlier Arizona legal paradigm in which murder and capital murder are separate substantive offenses with different essential elements and different forms of potential punishment. That is, as applied to the particular Arizona murder statute at issue here, Ring's holding was "substantive" for Teague purposes. See Bousley, 523 U.S. at 620 (noting that a Supreme Court holding is "substantive" when it impacts the scope and application of a "substantive [*55] federal criminal statute"). A careful analysis of the structure and history of the relevant Arizona statutes, coupled with a close examination of the underlying rationale of Ring and the Supreme Court's related jurisprudence, reveals that Ring is, as to Arizona, a "substantive" decision, even if its form is partially procedural.. . .

In Walton, the Supreme Court abrogated our decision in Adamson. In pertinent part, Walton held that aggravating circumstances under Arizona law were only "sentencing considerations," not "elements of the offense" of capital murder. Id. at 648 (citing Poland v. Arizona, 476 U.S. 147, 156, 90 L. Ed. 2d 123, 106 S. Ct. 1749 (1986)). But cf. id. at 710-14 (Stevens, J., dissenting) (suggesting that, "under Arizona law," the aggravating factors are "elements of a capital crime [ ] [that] must be determined by a jury") (citations omitted). Thus, Walton refuted our decision in Adamson and concluded "that the Arizona capital sentencing [*64] scheme does not violate the Sixth Amendment." Id. at 649.

Ring expressly overruled Walton in relevant part. 536 U.S. at 589. In considering the same statutory scheme at issue in Walton and Adamson, Ring squarely rejected Walton's interpretation of Arizona law, holding that "Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense.'" Id. at 609 (quoting Apprendi, 530 U.S. at 494 n.19).

In so doing, Ring restored, as a matter of substantive law, the pre-Walton structure of capital murder law in Arizona; and, in so doing, Ring confirmed what we stated in Adamson: Under substantive Arizona law, there is a distinct offense of capital murder, and the aggravating circumstances that must be proven to a jury in order to impose a death sentence are elements of that distinct capital offense. 865 F.2d at 1025-28; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732, 739, 154 L. Ed. 2d 588 (2003) ("Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that [*65] may be imposed on a defendant, that fact -- no matter how the State labels it -- constitutes an element, and must be found by a jury beyond a reasonable doubt.") (opinion of Scalia, J.). That is, when Ring displaced Walton, the effect was to declare Arizona's understanding and treatment of the separate crime of capital murder, as Arizona defined it, unconstitutional. And when Ring overruled Walton, repositioning Arizona's aggravating factors as elements of the separate offense of capital murder and reshaping the structure of Arizona murder law, it necessarily altered both the substance of the offense of capital murder in Arizona and the substance of Arizona murder law more generally. Cf. Jones v. United States, 526 U.S. 227, 229, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999) (holding that the federal car-jacking statute established three separate offenses rather than a single crime with a choice of three maximum penalties). In response to Ring, the Arizona Supreme Court vacated all death sentences in cases pending on direct appeal, see State v. Smith, 203 Ariz. 75, 50 P.3d 825, 831 (Ariz. 2002), and the Arizona legislature once [*66] more changed the substantive law pertaining to capital punishment -- this time providing for jury sentencing in capital cases. See Act of Apr. 27, 2001, ch. 260, § 1, 2001 Ariz. Sess. Laws 1334, 1334.

Ring's understanding of capital murder as an offense both greater than and distinct from other murder crimes is neither unusual among the various States nor unrecognized by the Supreme Court. See, e.g., Atkins v. Virginia, 536 U.S. 304, 307 n.1, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002) (noting that the two defendants were both "indicted for capital murder" but "the prosecution ultimately permitted [one] to plead guilty to first-degree murder in exchange for [ ] testimony against" the other); Beck v. Alabama, 447 U.S. 625, 628, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980) (noting that Alabama law treats "felony murder [as] [ ] a lesser included offense of the capital crime of robbery-intentional killing").

In assessing the operation of Apprendi, in fact, Justice Scalia recently explained that "the underlying offense of 'murder' is a distinct, lesser included offense of 'murder plus one or more aggravating circumstances.'" Sattazahn, 123 S. Ct. at 739. [*67] Noting that there was "no principled reason to distinguish . . . what constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee and what constitutes an 'offence' for purposes of the Fifth Amendment's Double Jeopardy Clause," Justice Scalia concluded "that 'murder plus one or more aggravating circumstances' is a separate offense from 'murder' simpliciter." Id. at 739-40 (also citing Ring for the proposition that "'first-degree murder' . . . is properly understood to be a lesser included offense of 'first-degree murder plus aggravating circumstance(s)'"); see also Apprendi, 530 U.S. at 501 (Thomas, J., concurring) ("If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] . . . the core crime and the aggravating fact together constitute an aggravated crime . . . . The aggravating fact is an element of the aggravated crime.").

Ring compelled Arizona to reorder its substantive murder law in order to recognize this two-offense structure. With regard to Arizona murder law, then, Ring did more than announce a procedural rule vis-a-vis whether [*68] a judge or a jury is to decide if elements of a particular offense have been proven satisfactorily. Ring reintroduced "capital murder" as a separate substantive offense under Arizona law, redefining, in the process, what the substantive elements of this "separate offense" of capital murder are. See Apprendi, 530 U.S. at 541 (O'Connor, J., dissenting) (observing that the Arizona first-degree murder statute "authorizes a maximum penalty of death only in a formal sense" and only to the extent it explicitly cross-references the separate Arizona statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty). In this sense, Ring had an inescapably substantive impact in Arizona for Teague purposes. n10

To be sure, states must ensure that their capital sentencing schemes comply with the minimal procedural requirements set forth in Ring. Still, in the context of Arizona capital murder law, Ring's rule is not limited to procedure. Ring did, as to Arizona, announce a substantive rule: It "decided the meaning of a criminal statute," see Bousley, 523 U.S. at 620, and it did so in a manner that both redefined the separate substantive offense of "capital murder" in Arizona and reinserted the distinction between murder and capital murder into Arizona's substantive criminal law structure. Under the Supreme Court's articulation of "substantive" decisions in Bousley, then, Ring announced a "substantive" rule, Bousley, 523 U.S. at 620, for it "altered the meaning of [Arizona's] substantive criminal law." Santana-Madera, 260 F.3d at 139; cf. Cannon, 297 F.3d at 994 (holding Ring's rule to be procedural in a different capital murder context). When a decision affects the substantive elements of an offense, or how an offense is defined, it is necessarily a decision of substantive law. Dashney, 52 F.3d at 299. [*70] And because Ring is a "substantive" decision with regard to the meaning, structure, and ambit of the relevant provisions of Arizona's criminal law, Teague does not bar retroactive application of Ring to cases decided under those Arizona provisions, regardless of whether those cases are considered on direct or collateral review.

The Arizona Supreme Court considered this question in State v. Towery, 204 Ariz. 386, 64 P.3d 828 (Ariz. 2003), and concluded that Ring was not a substantive decision. Id. at 833. More recently, the Arizona Supreme Court considered related issues in State v. Ring, 204 Ariz. 534, 65 P.3d 915 (Ariz. 2003) ("Ring II"). In each case, the Arizona Supreme Court's conclusion was founded on an interpretation of federal law, namely a construction of Teague and Allen v. Hardy, 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986) (per curiam), in Towery and an analysis of the Ex Post Facto Clause in Ring II. Because the decisions in Towery and Ring II rest on federal law, and not state law, they do not bind us. Moore v. Sims, 442 U.S. 415, 428, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979) [*71] (reiterating the familiar maxim that state courts possess final interpretive "authority" only regarding "laws of the state") (citing R.R. Comm'n v. Pullman Co., 312 U.S. 496, 498, 85 L. Ed. 971, 61 S. Ct. 643 (1941), and Gilchrist v. Interborough Co., 279 U.S. 159, 73 L. Ed. 652, 49 S. Ct. 282 (1929)); Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 121, 98 L. Ed. 546, 74 S. Ct. 403 (1954) (noting that a federal court "decides for itself facts or constructions upon which federal constitutional issues rest"); Crew Levick Co. v. Pennsylvania, 245 U.S. 292, 62 L. Ed. 295, 38 S. Ct. 126 (1917) (noting that federal courts determine federal questions independently); see also Haynes v. Washington, 373 U.S. 503, 515-16, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242 (9th Cir. 1984); Calkins v. Graham, 667 F.2d 1292, 1295 n.1 (9th Cir. 1982). This is particularly true in the Eighth Amendment context. Wainwright v. Goode, 464 U.S. 78, 84, 78 L. Ed. 2d 187, 104 S. Ct. 378 (1983). Nonetheless, the two [*72] opinions are worthy of analysis.

In Towery, the Arizona Supreme Court correctly concluded that Ring's rule is partially procedural under Teague. For the reasons previously stated, however, we respectfully disagree with Towery's conclusion that Ring's rule is entirely procedural. Ring's invalidation of Arizona's capital murder statute under the United States Constitution did more than alter "who decides." Towery, 64 P.3d at 833. It restructured Arizona law and it redefined, as a substantive matter, how that law operates. It is, thus, incorrect to conclude that the repositioning of aggravating factors as elements of a separate offense did not constitute a "substantive" rule. Such a construction ignores that Ring's restructuring of the elements of the separate offense of capital murder is, at the very least, a determination of the "meaning of a criminal statute," which is precisely the kind of decision that Towery itself recognizes as "substantive." Id. at 832. Of equal importance is the fact that Ring's revival of the pre-Walton two-offense structure of Arizona murder law does "address the criminal significance of certain [*73] facts," another kind of decision that Towery recognizes as "substantive." Id.

The Arizona Supreme Court's analogy to Apprendi in Towery is flawed as well. As noted above, in Apprendi, "the substantive basis for New Jersey's enhancement [was] not at issue." 530 U.S. at 475. In Ring, conversely, the substantive basis of Arizona's capital murder regime was at issue, so much so that Ring restored as a matter of substantive law the pre-Walton capital murder paradigm in Arizona. As we held in Adamson, this regime had defined capital murder as a substantive offense separate from non-capital murder. 865 F.2d at 1026. This distinction was required to satisfy the Eighth Amendment's requirement that a capital sentencing scheme "genuinely narrow the class of persons eligible for the death penalty." Zant, 462 U.S. at 877. Ring further required the Arizona legislature to amend the Arizona murder statute to conform to the requirements of the United States Constitution.

The Arizona Supreme Court's Ex Post Facto analysis in Ring II likewise does not alter our analysis. In Ring II, the Arizona Supreme Court [*74] concluded that applying Arizona's new sentencing statutes to previously convicted defendants did not violate the federal or state prohibitions against Ex Post Facto application of laws. Ring II, 65 P.3d at 928. To reach this conclusion, Ring II relied on three decisions: the Supreme Court's decisions in Dobbert v. Florida, 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977), and Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990), and the Arizona Supreme Court's decision in State v. Correll, 148 Ariz. 468, 715 P.2d 721 (Ariz. 1986), rev'd in part on other grounds by Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998). Ring II, 65 P.3d at 926-28. Like Dobbert, Ring II concluded, "the statutory change between the two sentencing methods was 'clearly procedural'" in that this legislative enactment merely addressed the "who decides" question. Id. at 927 (quoting Dobbert, 432 U.S. at 293-94).

In contrast to the post-Ring legislative changes at issue in Ring II, the Supreme Court's Ring decision itself [*75] was not merely procedural. Ring declared a portion of Arizona's prior law unconstitutional, demanded a redefinition of the meaning of that criminal statute, and prompted the legislative response at issue in Ring II, not by announcing a purely procedural rule, but by announcing, as a matter of substantive law, that Arizona's understanding and treatment of the separate crime of capital murder was unconstitutional. This is exactly the kind of decision that is "substantive" under Bousley, 523 U.S. at 620. Indeed, the very case law on which Ring II relies understands precisely this kind of rule to be of a "substantive nature." See Collins, 497 U.S. at 51 (noting that a rule is substantive in the Ex Post Facto context where it implicates "the definition of crimes, defenses, or punishments"); Correll, 715 P.2d at 735 (holding that changes relating to aggravating circumstances constituted substantive changes to the offense of capital murder).

Teague requires a different analytical lens from the one used by the Arizona Supreme Court in Ring II. We do not necessarily assess whether the action of the Arizona legislature, [*76] in response to Ring, effected a "substantive" change to Arizona law; rather, we examine whether the rule announced by the Supreme Court in Ring was a "substantive" one for Teague purposes. Analyzed under Teague, the rule announced by the Supreme Court in Ring, with its restructuring of Arizona murder law and its redefinition of the separate crime of capital murder, is necessarily a "substantive" rule. See Bousley, 523 U.S. at 620. Thus, Teague does not bar its application in this case.

In addition to Ring's substantive effect on Arizona law, a full Teague analysis of the unique procedural aspects of Ring provides an independent basis upon which to apply Ring retroactively to cases on collateral review.. . .

In considering Ring's effect on the accuracy of the proceeding, it is important to note that this is a capital case. "Where the State imposes the death penalty for a particular crime, . . . the Eighth Amendment imposes special limitations on that process." Payne v. Tennessee, 501 U.S. 808, 824, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). Under Teague, the focus on the "accuracy of the . . . proceeding" generally is understood to mean "accuracy [in] determining . . . innocence or guilt." Graham, 506 U.S. at 478 (internal quotation marks omitted). However, as the United States Supreme Court has stated, penalty-phase proceedings also "'have [*81] the hallmarks of the trial on guilt or innocence.'" Sattazahn, 123 S. Ct. at 737 (quoting Bullington v. Missouri, 451 U.S. 430, 439, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981)). For this reason, a verdict rejecting the imposition of the death penalty prohibits a subsequent capital prosecution. See id.; Bullington, 451 U.S. at 439. This is consistent with the substantive consideration of capital murder as a crime distinct from ordinary murder. Sattazahn, 123 S. Ct. at 739. Accordingly, in the capital context, Teague's reference to "accuracy in the proceedings" contemplates the ultimate verdict in both the conviction and penalty phases.

The Supreme Court has long recognized that, in the capital context, "the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a non-capital case." Gilmore v. Taylor, 508 U.S. 333, 342, 124 L. Ed. 2d 306, 113 S. Ct. 2112 (1993). n11 Indeed, as Justice Kennedy has observed, "all of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability and accuracy in some sense." Sawyer, 497 U.S. at 243. [*82] Reformation of capital sentencing procedures has been presumed to meet the first requirement that the new rule substantially enhance the accuracy of the legal proceeding at issue. See id. (but emphasizing that the second "bedrock procedural element" requirement also must be met). Thus, on its face, the procedure at issue in Ring is sufficient to meet the first component of Teague's second exception. Moreover, upon close examination, the actual impact of procedural change dictated by Ring provides further support for finding that the Ring rule enhances the accuracy of the determination of capital murder in Arizona.

The Supreme Court recently observed that, in light of the past thirty years of actual experience, "the superiority of judicial factfinding in capital cases is far from evident. [*83] " Ring, 536 U.S. at 607. An examination of the procedure at issue makes apparent several reasons why fact-finding by a jury, rather than by a judge, is more likely to heighten the accuracy of capital sentencing proceedings in Arizona.

First, Arizona penalty-phase presentations to judges bear much greater resemblance to traditional non-capital sentencing hearings than to proceedings required to "'have the hall-marks of the trial on guilt or innocence.'" Sattazahn, 123 S. Ct. at 737 (quoting Bullington, 451 U.S. at 439). Penalty phases in jury trials are characterized by the orderly presentation of evidence and argument. In contrast, penalty-phase presentations to Arizona judges are capable of being extremely truncated affairs with heavy reliance on presentence reports and sentencing memoranda, and with formal court proceedings frequently limited to a brief argument by counsel. Whether this has been the product of the participants treating penalty-phase trials as mere sentencing hearings, or whether this is the natural product of the shorthand communication typical of non-capital sentencing proceedings is unknown. However, the results [*84] are clear. A quick survey of recent Ninth Circuit cases from Arizona illustrates the point. See, e.g., Beaty v. Stewart, 303 F.3d 975, 988 (9th Cir. 2002) (no mitigating evidence presented), petition for cert. filed, No. 02-1611, 71 U.S.L.W. 3530 (Jan. 23, 2003)[cert. denied, 155 L. Ed. 2d 1098, 123 S. Ct. 2073 (2003)]; Lambright v. Stewart, 241 F.3d 1201, 1202-03 (9th Cir. 2001) (no argument presented, and mitigating evidence consumed three transcript pages), cert. denied, 534 U.S. 1118, 151 L. Ed. 2d 892, 122 S. Ct. 930 (2002); Smith v. Stewart, 189 F.3d 1004, 1010 (9th Cir. 1999) (attorney asked court for advice on what legal and evidentiary considerations could be relevant in establishing mitigation; only brief argument on day of sentencing); Correll v. Stewart, 137 F.3d 1404, 1410 (9th Cir. 1998) (no defense witnesses presented; only brief argument); Clabourne, 64 F.3d at 1384 (no witnesses presented; only one mitigating circumstance argued).

In addition, because penalty-phase presentations to judges tend to resemble non-capital sentencing proceedings, the sentencing judge receives an inordinate amount of inadmissible [*85] evidence, which he or she is expected to ignore. Indeed, the focus of penalty-phase proceedings before judges has been the presentence report prepared by the probation officer, rather than evidence formally presented and tested at trial. n12 Although presentence reports are an extremely useful sentencing tool, by their nature the information they contain is "generally hearsay, even remote hearsay at the second and third remove." United States v. Frushon, 10 F.3d 663, 666 (9th Cir. 1993) (quoting United States v. Fine, 975 F.2d 596, 603 (9th Cir. 1992)). As a result, presentence reports are generally inadmissible at trial to prove any of the hearsay reports they contain. See United States v. Matta-Ballesteros, 71 F.3d 754, 767 (9th Cir. 1995), as amended by 98 F.3d 1100 (9th Cir. 1996). Because they are not subject to evidentiary standards, presentence reports may also contain factual errors. n13 In Arizona capital cases, presentence reports have also frequently contained inadmissible victim impact statements, including sentencing recommendations from the victim's family. n14

In addition, capital sentencing judges in Arizona have often received letters directly from the victim's family and friends expressing their opinions about sentencing, prompting the Arizona Supreme Court to explain that: "we have no way of preventing members of the community from writing judges." Mann, 934 P.2d at 792. n15 The net result, prior to Ring, was a capital sentencing system that allowed a large amount of inadmissible evidence to be submitted to capital sentencing judges that could not be considered by a penalty-phase jury.

The penalty-phase presentation in the instant case was typical of pre-Ring Arizona capital sentencing cases and illustrates both problems. The actual penalty-phase proceeding was exceedingly truncated and bore more resemblance to traditional non-capital judge sentencing than a trial. Before hearing any presentation by the parties, Judge Marquardt received a presentence report prepared by a probation officer who did not testify during the penalty phase. It contained numerous sentencing recommendations from the victim's family and friends, police officers, and others. Attached to the presentence report were a large number of letters from members of the community expressing their opinions, including a petition with over 500 signatories. The presentence report also contained the probation officer's opinion as to the heinous nature of the crime and expressed her opinion as to the sentence that the judge should impose.

In contrast, the formal presentations by the parties were extremely abbreviated. The admissible evidence actually presented to the judge paled in comparison with the inadmissible material contained in the presentence report. The State submitted a four-page sentencing [*89] memorandum urging imposition of the death penalty. Summerlin's attorney submitted nothing. Neither side made an opening statement. The State's formal evidentiary presentation on aggravation consisted of less than one transcript page. Summerlin's counsel declined to introduce testimony as to mitigation; rather, he asked the judge only to review the material contained in the presentence report. Thus, the cumulative presentation of each side's case in chief resulted in less than one page of trial transcript. The only live testimony was a brief presentation by the State to rebut medical statements contained in the presentence report. When viewed by volume, well over ninety percent of the material received by the sentencing judge in this case could not have been presented to a capital sentencing jury. Such a proceeding is not one that bears "the hallmarks of a trial on guilt or innocence."

The point of this discussion is not to examine whether trial errors occurred in any particular case, including this one, but to analyze whether requiring a jury to make the relevant findings would reduce the risk of an erroneous decision. A review of the cases demonstrates that judge capital sentencing [*90] proceedings have been contaminated by a large volume of inadmissible evidence and marked by truncated presentations by the parties. We have presumed that the sentencing judge could sort out the truly relevant, admissible evidence from this morass. The relevant question is not whether judges have been able to do so, but whether subjecting penalty-phase evidence to the crucible of a formal trial by jury would reduce the risk of error.

There is little doubt that it would. As Harry Kalven, Jr. and Hans Zeisel described it in their seminal study on the jury system:In addition to his wide experience with the likelihood that the defendant before him is guilty, the judge is exposed to prejudicial information which the law, in its regard for the right of the defendant, aims to screen out of the evaluation of his guilt or innocence. The law's ideal in this situation may be something of a libertarian luxury. Our only point is that the law cannot easily achieve it without a jury.Harry Kalven, Jr. & Hans Zeisel, The American Jury 127 (Little, Brown 1966).

If there is any place in which adherence to evidentiary rules, constitutional restraints, and the defendant's confrontation [*91] rights is paramount, it must be when the defendant is exposed to the penalty of death. Subjecting penalty-phase presentations to the rigors and restrictions of a jury trial necessarily will improve the quality of presentation and diminish the risk of an erroneous verdict.

A second primary accuracy-enhancing role of a jury in capital cases is to make the important moral decisions inherent in rendering a capital verdict. The Supreme Court "has emphasized that a sentence of death must reflect an ethical judgment about the 'moral guilt' of the defendant." Schiro v. Indiana, 475 U.S. 1036, 1038, 89 L. Ed. 2d 355, 106 S. Ct. 1247 (1986) (Marshall, J., dissenting from the denial of certiorari) (citing Enmund v. Florida, 458 U.S. 782, 800-01, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982)). One of the critical functions of a jury in a capital case is to "maintain a link between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U.S. 510, 520 n.15, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). Thus, "in a capital sentencing proceeding, the Government has 'a strong interest in having the jury express the conscience of the [*92] community on the ultimate question of life or death.'" Jones v. United States, 527 U.S. 373, 382, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999) (quoting Lowenfield v. Phelps, 484 U.S. 231, 238, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988)).

"'The men and women of the jury may be regarded as a microcosm of the community.'" Harris v. Alabama, 513 U.S. 504, 517, 130 L. Ed. 2d 1004, 115 S. Ct. 1031 (1995) (Stevens, J., dissenting) (quoting Royal Commission on Capital Punishment 1949-1953, Report 200 (1953)). There could "therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Id. Thus, as Justice Breyer noted in his concurring opinion in Ring, entrusting a jury with the authority to impose a capital verdict is an important procedural safeguard, because the jury members "are more attuned to the community's moral sensibility," "reflect more accurately the composition and experiences of the community as a whole," and act to "express the conscience of the community on the ultimate question [*93] of life or death." 536 U.S. at 615-16 (Breyer, J., concurring in the judgment) (internal citations and quotation marks omitted). n16

This principle is not only true as a general matter in capital murder verdicts, but [*94] it has specific application to determination of some of the aggravating factors contained in Arizona's death penalty scheme. For example, one of the two aggravating circumstances found by Judge Marquardt in this case was that the murder was committed "in an especially heinous, cruel or depraved manner." Ariz. Rev. Stat. § 13-703(F)(6). The Arizona Supreme Court has noted that these are "admittedly broad subjective terms." State v. Vickers, 159 Ariz. 532, 768 P.2d 1177, 1188 n.2 (Ariz. 1989). The assessment of whether a crime is "heinous" depends on the "mental state and attitude of the perpetrator as reflected in his words and actions." State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 10 (Ariz. 1983) (citations omitted). As we noted in discussing this aggravating factor in Adamson: "These assessments directly measure a defendant's 'moral guilt' and overall culpability -- traditionally the jury's domain of decision." 865 F.2d at 1027.

These assessments may be influenced by the possible acclimation of the judge to the capital sentencing process. Most jurors in capital cases will never sit on another case in which the death penalty is sought. [*95] Judges, by contrast, confront death penalty cases on a regular and sometimes routine basis in Arizona. For instance, Judge Marquardt, who sentenced Summerlin to death, imposed capital punishment on James Fisher in a separate case on the same day. A reasonable inference from the habituation brought about by imposing capital punishment under near rote conditions is that a judge may be less likely to reflect the current conscience of the community and more likely to consider imposing a death penalty as just another criminal sentence. Indeed, when questioned about another capital case in which his judgment was being assailed because he purportedly slept through portions of the short penalty-phase hearing, Judge Marquardt answered that he was unable to recall the case, but "said he had no doubt that the death penalty was warranted." Adam Liptak, Judge's Drug Use at Issue in 2 Death Sentences, N.Y. TIMES, May 16, 2002, at A1. "These guys have sentenced themselves," he is reported to have said. Id.

Of course, Judge Marquardt's conduct is not at all representative of the Arizona judiciary -- a point that must be underscored. However, the extremity of his actions highlights the potential [*96] risk of accuracy loss when a capital decision is reposed in a single decision-maker who may be habituated to the process, or who may not treat capital sentencing in accordance with the heightened requirements that the Eighth Amendment imposes. Obviously, in Summerlin's case, the concern is not merely theoretical.

In addition, unlike judges, juries do not stand for election in Arizona and therefore are less apt to be influenced by external considerations when making their decisions. As Justice Stevens has commented, "given the political pressures they face, judges are far more likely than juries to impose the death penalty." Harris, 513 U.S. at 521 (Stevens, J., dissenting). This postulate has empirical support: Judges who face election are far more likely to impose the death penalty than either juries or appointed judges. See Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 793-94 (1995) (discussing studies documenting the existence of a statistically-significant correlation between an increased override of juries' recommendations [*97] against the death penalty by state judges and occurrence of judicial elections in Alabama, Florida, and Indiana); Fred B. Burnside, Comment, Dying to Get Elected: A Challenge to the Jury Override, 1999 Wis. L. Rev. 1017, 1039-44 (same); see also Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 Va. L. Rev. 1, 62 (2002) (citing empirical examination of death penalty decisions issued by the California Supreme Court between 1976 and 1996). It also has anecdotal support. n17

These reasons underscore Justice Breyer's observation in Ring that "the danger of unwarranted imposition of the penalty cannot be avoided unless 'the decision to impose the death penalty is made by a jury rather than by a single governmental official.'" 536 U.S. at 618 (Breyer, J., concurring in the judgment) (quoting Spaziano v. Florida, 468 U.S. 447, 469, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984) (Stevens, J., concurring in part and dissenting in part)).

For all of these reasons, exemplified by the facts of this case, there is little doubt that the rule announced in Ring will significantly improve the accuracy of capital trials in Arizona. This conclusion is not -- and should not be considered as -- a negative assessment of the many excellent state trial judges in Arizona, many of whom have been national leaders in improving the jury system. See, e.g., B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 Judicature 280 (1996). However, the structure of Arizona capital sentencing allows extra-judicial factors to enter into the ultimate judgment such as the consideration of inadmissible evidence, political pressure, [*99] truncated evidentiary presentation, and prior experience with other capital defendants that would be absent from a jury's consideration of penalty-phase evidence.

If the allegations concerning Judge Marquardt are true, Summerlin's fate was determined by a drug-impaired judge, habituated to treating penalty-phase trials the same as non-capital sentencing, who relied upon inadmissible evidence in making the factual findings that sentenced Summerlin to death. Although no system is perfect, relying on a jury to administer capital punishment unquestionably reduces the risk of error by reposing trust in twelve individuals who must agree as to the presence of aggravating factors beyond a reasonable doubt, whose continued job security is not threatened by their decision, and whose consideration is based solely on admissible evidence subject to the rigors of cross-examination.

Taking into account the heightened attention that the Eighth Amendment obligates us to afford capital cases, the inevitable conclusion must be that a requirement of capital findings made by a jury will improve the accuracy of Arizona capital murder trials.

The second requirement of the Teague exception provides [*100] that the newly announced rule must be a "watershed rule" that alters our understanding of bedrock procedural elements essential to the fairness of the proceeding. Sawyer, 497 U.S. at 242. Although Eighth Amendment concerns are implicated in Ring, the bedrock procedural element at issue is the provision of the Sixth Amendment right to a jury trial.

Ring not only changed the substantive criminal law of Arizona, but it fundamentally altered the procedural structure of capital sentencing applicable to all states. Ring established the bedrock principle that, under the Sixth Amendment, a jury verdict is required on the finding of aggravated circumstances necessary to the imposition of the death penalty. 536 U.S. at 609. Ring requires the vacation of a capital judgment based on judge-made findings.

A structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991). If structural error is present, "a criminal trial cannot reliably serve its function as a vehicle for [*101] determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Rose v. Clark, 478 U.S. 570, 577-78, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986) (citation omitted).

Depriving a capital defendant of his constitutional right to have a jury decide whether he is eligible for the death penalty is an error that necessarily affects the framework within which the trial proceeds. Indeed, the trial has proceeded under a completely incorrect, and constitutionally deficient, frame-work. In short, allowing a constitutionally-disqualified fact-finder to decide the case is a structural error, and Ring error is not susceptible to harmless-error analysis.

This conclusion is compelled by the analysis in Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993). In that case, the Supreme Court considered whether a deficient reasonable-doubt instruction n18 was subject to harmless-error analysis. Id. at 277. In resolving the question, Justice Scalia first noted that the Sixth Amendment right to a jury trial "includes, of course, as its most important element, the right to have the jury, rather [*102] than the judge, reach the requisite finding." Id. at 277 (citing Sparf v. United States, 156 U.S. 51, 105-06, 39 L. Ed. 343, 15 S. Ct. 273 (1895)). To determine whether harmless error exists, he noted, the Supreme Court must examine "the basis on which 'the jury actually rested its verdict.'" Id. at 279 (quoting Yates v. Evatt, 500 U.S. 391, 404, 114 L. Ed. 2d 432, 111 S. Ct. 1884 (1991) (emphasis added in Sullivan)). Given that, Justice Scalia observed the "illogic of harmless-error review" under those circumstances because a review could occur only if a court "hypothesized a guilty verdict that was never in fact rendered." Id. at 279-80. The Court thus concluded that the Cage error was structural because any constitutionally defective reasonable doubt jury instruction "vitiates all the jury's findings" and "[a] reviewing court can only engage in pure speculation -- its view of what a reasonable jury would have done." Id. at 281 (emphasis in original). "And when it does that, 'the wrong entity judges the defendant guilty.'" Id. (quoting Rose, 478 U.S. at 578) (alteration in original). [*103]

In our case, the wrong entity found Summerlin to be guilty of a capital crime. Here, as in Sullivan, there was no jury verdict within the meaning of the Sixth Amendment and no constitutionally cognizable finding to review. A complete deprivation of the right to a jury is an error that does not arise during a presentation to a jury. Rather, such an error indisputably affects "the framework within which the trial proceeds." Rose, 478 U.S. at 578. This type of error cannot be cured, or determined harmless, by examining other mitigating circumstances that may have been presented at trial because, as [*104] Justice Scalia observed:The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.Sullivan, 508 U.S. at 280 (citing Bollenbach v. United States, 326 U.S. 607, 614, 90 L. Ed. 350, 66 S. Ct. 402 (1946)). n19

Sullivan's logic thus applies with even greater force where, as here, there was no jury finding at all. As Justice Scalia observed in Sullivan, under the Sixth Amendment, a judge "may not direct a verdict for the State, no matter how overwhelming the evidence." Id. at 277. If a judge is constitutionally precluded from directing a verdict for the State, then, perforce, a judge sitting without a jury cannot constitutionally enter a judgment of conviction for capital murder. In this sense, Ring error indisputably affects the framework of the trial and must therefore constitute structural error.

The Supreme Court's recent opinion in Nguyen v. United States, 156 L. Ed. 2d 64, 123 S. Ct. 2130 (2003), reaffirms that any decision of an improperly constituted judicial body must be vacated. In Nguyen, the Supreme Court assessed a series of judgments rendered by a federal appellate court panel on which a "non-Article III judge" served. 123 S. Ct. at 2133-34. Vacating this group of judgments, the Supreme Court reasoned that an appellate panel that included a non-Article III judge proved an "impermissible" and "unauthorized" decisional body, [*106] one that necessarily conflicted with a "strong policy concerning the proper administration of judicial business." Id. at 2135-36 (citation and internal quotation marks omitted). Because the "validity" of the relevant judicial body was fundamentally flawed, and because this "plain defect" was incurable, Nguyen explained, the decisions reached by that body must be vacated. Id. at 2137-38; see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83-85, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982) (holding that delegation to adjunct bankruptcy judges of powers beyond those conferred to non-Article III judges rendered an entire administrative scheme unconstitutional).

The principle animating Sullivan, Nguyen, and Northern Pipeline provides that where an improperly constituted or situated tribunal reaches a decision, that decision is infected with a "plain defect" and must be vacated. Nguyen, 123 S. Ct. at 2137-38. Whether before an improperly constituted federal appellate panel, a flawed jury panel, a biased judge, or a judge without fact-finding authority in particular contexts, even an otherwise error-free trial is [*107] subject to reversal because the error affects the very framework within which the trial proceeds. Id. Such structural error indisputably arises here. n20

Application of the heightened scrutiny commanded by the Eighth Amendment in capital cases underscores the structural nature of this Sixth Amendment constitutional infirmity. The Sixth Circuit recently considered whether harmless-error analysis could apply in a capital case under similar circumstances in Esparza v. Mitchell, 310 F.3d 414 (6th Cir. 2002), petition for cert. filed, Nos. 02-1369, 02-8849, 71 U.S.L.W. 3613 (Mar. 4, 2003). In that case, the Sixth Circuit held that a death sentence could not be imposed when the state had failed to charge the aggravating circumstance and the jury had not found the aggravating circumstance beyond a reasonable doubt. Id. at 420. In reaching its decision, the Sixth Circuit specifically rejected the theory that a harmless-error analysis under a Neder theory could apply, noting that "there is no suggestion in the Chief Justice's opinion in Neder that harmless error would protect a directed verdict for the State on a crucial finding under the Eighth Amendment in a capital case." Id. at 421. The court further noted:Harmless-error review in [capital] cases should apply only when the jury [*109] has actually performed its function under the Eighth Amendment. The jury in this case never made a judgment at all on the only possible aggravating circumstance -- a constitutionally indispensable requirement without which the death penalty cannot be imposed. The State's argument that the error here can be excused as harmless would lead to the conclusion that any, or all, elements required by a state's capital sentencing system may be supplied by judges rather than the jury. Neither the Eighth Amendment nor Ohio's own statutes adopted in order to comply with it permit such a gross deviation from the principle of jury sentencing according to expressly stated, clear statutory standards.Id. at 422.

Given Ring's declaration that a defendant is entitled under the Sixth Amendment to a jury verdict in the penalty phase of a capital case, the substitution of a non-jury verdict cannot be subject to harmless-error analysis. Ring error is one "'affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Neder, 527 U.S. at 8 (quoting Fulminante, 499 U.S. at 310).

That Ring error [*110] is structural is a critical consideration in determining whether the second Teague exception has been satisfied. It does not, however, end our inquiry. See Tyler v. Cain, 533 U.S. 656, 666-67, 150 L. Ed. 2d 632, 121 S. Ct. 2478 (2001). The Supreme Court has explained on numerous occasions that a "truly watershed case" is one of a "small core of rules" that is "ground-breaking." See, e.g., O'Dell, 521 U.S. at 167; Caspari, 510 U.S. at 396; Graham, 506 U.S. at 478. The newly announced rule must enhance accuracy, improve fairness, and dictate "observance of those procedures that . . . are implicit in the concept of ordered liberty." Teague, 489 U.S. at 311 (plurality) (internal quotation marks omitted).

People v. Heard, 2003 Cal. LEXIS 6293, (Cal 8/28/03)Death sentence vacated as the trial court conducted a seriously deficient examination of a prospective juror during life/death qualifications & erroneously excused the venireperson for cause.

Arizona v. Prince, 2003 Ariz. LEXIS 110 (Az 8/25/2003) Reversed in light of Ring error not being harmless.

Smith v. Alabama, 2003 Ala. Crim. App. LEXIS 181 (Ala. Crim. App. 8/28/2003) Remand ordered to correct errors in judge imposed sentencing.

Clemons v. Alabama, 2003 Ala. Crim. App. LEXIS 217 (Ala. Crim. App. 8/29/2003) Remand ordered on mental retardation challenge.

Missouri v. Edwards, 2003 Mo. LEXIS 125 (Mo. 8/26/2003) Relief denied on multiple grounds, but most notably,on whether the trial court erred in determining that the strike of a male African-American postal worker from the jury was not pretextual. The Court appears to stop just short of barring strikes based on one's profession.

[Our precident] cites Slappy v. State, 503 So. 2d 350 (Fla. App. 1987), with approval. Slappy disapproved of the strike of a teacher on the basis of the prosecutor's belief that teachers tend to be liberal, because the prosecutor "did not show any connection between liberalism, schoolteaching and the particular jurors and facts of the case." Id. at 270. Moreover, a similarly situated white schoolteacher was not stricken. Butler itself disapproved of the strike of a potential juror on the basis that she was elderly and the prosecutor had another elderly person on a different jury who was easily intimidated. The court said that without a showing that this rationale applied to this elderly person, the reason given was pretextual. Butler, 731 S.W.2d at 271. Similarly, in finding an offered ground pretextual, Marlowe noted the low degree of logical relevance of the claimed rationale -- class action membership -- to the facts of the criminal case beforre it. Marlowe, 89 S.W.3d at 470.

Other judges, in Missouri and elsewhere, have also cautioned that courts should be especially careful in reviewing claims that a juror was stricken based on a particular occupation. In State v. Smith, 791 S.W.2d 744, 749 (Mo. App. E.D. 1990), the court rejected a challenge based on the juror's employment by the government, saying that the claim that the prosecutor had bad prior experiences with government employees was pretextual. In State v. Hudson, 822 S.W.2d 477, 481 (Mo. App. E.D. 1991), the court said "We recognize occupation related explanations are susceptible to abuse as the court in Smith found." In Hudson, however, the prosecutor was able to tie the prosecutor's strike of a postal worker based on his occupation to personal dealings with postal workers in his work and through his family. The court found this acceptable. Id.; see also Hernandez v. New York, 500 U.S. 352, 363-64 (1991) (holding that the disparate impact on a particular ethnic group of an asserted basis for exclusion is one indicator of discriminatory intent); United States v. Uwaezhoke, 995 F.2d 388, 392-93 (3d Cir. 1993) (discussing how to measure disparate impact and need to relate reason for strike to case).

Other Missouri cases approving striking a postal worker also considered additional reasons for the strike and whether the strike was applied to other similar jurors; the courts did not merely accept a strike based on the person's occupation as postal worker, per se. Thus, in Smulls, the person also was stricken based on her demeanor, and another person, not African-American, was struck for reasons similar to those for which the person in question was stricken. Smulls, 935 S.W.2d at 15-16. In Williams, the person was not stricken only because she was a postal worker, but also because she resembled the defendant in physical appearance and demeanor. Williams, 97 S.W.3d at 471.

In the future, trial courts should similarly consider strikes based on occupation carefully, assessing them for pretext by looking at whether the occupation and the claimed traits relate to the particular case or juror, whether similarly situated jurors are treated differently, and so forth, considering the factors set out above, and not allow a strike to rest solely on the claim that the juror is "a postal worker."

OTHER CASES OF NOTE

None noted this week.

FOCUS

Focus this week covers Judge Reihnardt's concurrence in Summerlin v. Stewart:

I join fully in Judge Thomas's excellent opinion for the court. I could not improve on the legal arguments he has offered. I agree entirely that Ringestablishes a new substantive rule and that to the extent the rule is procedural it constitutes a watershed rule that enhances the accuracy of capital sentencing and alters our understanding of a bedrock procedural provision.

I write separately only to emphasize that a contrary result would be unthinkable in a society that considers itself both decent and rational. Few seriously doubt that the death penalty is generally imposed in an arbitrary manner in this nation. The [*119] vagaries of the process by which prosecutors select those they believe worthy of death; the chances that defendants will be assigned incompetent rather than competent legal counsel, and that such representation will continue throughout the state and federal direct and collateral proceedings; the fortuitous circumstances which in combination account for the fact-finders' decisions in capital proceedings as to who shall live or die: all result in a system of execution by chance or fate. And this is wholly aside from factors such as race, IQ, poverty, wealth, geography, and sex, each of which plays a significant part in the business of determining which persons the state decides to execute.

But surely there is a limit to arbitrariness -- even to arbitrariness in the imposition of the death penalty. And executing people because their cases came too early -- because their appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions [*120] regarding life and death in capital cases -- is surely arbitrariness that surpasses all bounds.

It is not uncommon for the Supreme Court to make significant errors in interpreting the constitution, see, e.g., Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896); Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986); Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), and to correct those errors when it recognizes its mistakes, see, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954); Lawrence v. Texas, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003); Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). The Court is to be commended for the integrity it displays in acknowledging its failures in such cases. Ordinarily, the consequences are that the judicial reversal is greeted with relief and the error has no further adverse effects. Certainly, all must agree that constitutional errors made by the Court should not have any greater adverse consequences than necessary. Here, [*121] however, in the dissent's view, additional people should now be put to death following unconstitutional proceedings even though the Court has recognized the unconstitutionality inherent in those future executions, and even though had the Court not erred initially, the death sentences in question would previously have been set aside. To me, this represents a seriously warped view of the nature of our legal system, and the relationship of that system to its ultimate objective: justice.

The dissent expresses a peculiar lack of confidence in juries, and states that the "conscience of the community is not necessarily the fairest adjudication for a capital defendant" because considerations of race and other biases influence jurors' actions. Our recent experience shows precisely the opposite. When the Attorney-General decided to order federal death penalty prosecutions in a far wider range of cases and places than ever before, juries responded by expressing the "conscience of the community." Since General Ashcroft has launched his expanded federal death penalty campaign, sometimes over the objections of local federal prosecutors, juries have returned 21 verdicts. In 20 of them they have [*122] voted for life rather than death. n1 Despite those who distrust it, the "conscience of the community" is indeed, a fair, democratic, and unbiased expression of societal values. To distrust juries is plainly to distrust democracy.

But even more important, my dissenting colleagues believe that it is perfectly proper for the state to execute individuals who were deprived of their constitutional right to have a jury make their death penalty decisions, if the judicial machinery had brought the direct appeal portion of their legal proceedings to an end before the day on which the Supreme Court recognized its constitutional error. In other words, my colleagues believe that those who had reached the stage of habeas proceedings as of the day of the Court's belated enlightenment may be executed, but those who were still awaiting a final answer to their appeals may not.

Wholly aside from the fact that the majority is unquestionably correct with respect to its careful analysis [*123] of retroactivity law, I remind my dissenting colleagues that "death is different." Ring v. Arizona, 536 U.S. 584, 606, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); Ford v. Wainwright, 477 U.S. 399, 411, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986) (plurality opinion) ("This especial concern [for reliability in capital proceedings] is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different"); Gardner v. Florida, 430 U.S. 349, 357, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 289, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (Brennan, J., concurring) ("The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself."). We do not execute people according to ordinary legal principles that may be good enough for our more routine decisions. When the state assumes the role of the Deity, it must exercise greater [*124] care. Thus, even if the dissenting argument were more closely attuned to traditional retroactivity law -- even if that law demanded a different result in run-of-the-mill cases -- I would not apply those rules here. In order to understand why, we need only look to the facts revealing the inherent fallibility of our criminal justice system.

This country imposed approximately 5,760 death sentences between 1973 and 1995. n2 During that time, "courts found serious, reversible error in nearly 7 of every 10of the thousands of capital sentences that were fully reviewed during the period." n3 State courts reviewed 4,578 of those cases and reversed 41% for serious error on direct appeal; another 10% were reversed on state collateral review. n4 Federal courts found error in 40% of the 599 cases which state courts affirmed. 82% of defendants who received a second trial after a successful state collateral petition did not receive a death sentence; 7% of those defendants were found innocent or had their charges dropped. Recently in Illinois, a conservative Governor declared a moratorium on executions after discovering that since the death penalty was reinstated, more individuals convicted [*125] of capital crimes and sent to death row had been exonerated than executed. Following a full investigation, he pardoned some of the prisoners on death row and commuted the sentences of the rest. n5 Since 1973, one hundred and eight people nationwide have been released from death row upon evidence of their innocence; there is no comparable statistic yet available for those who have been executed. n6 It is virtually certain that other people who are actually innocent -- much less those convicted in violation of the Constitution -- currently await execution.

Let me put the abstract problem of the retroactivity of Ringin perspective, and let me state it as clearly as possible. In Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), Jeffrey Alan Walton tried to persuade the then-members of the Supreme Court that a jury, not a judge, must make the critical factual decisions regarding his ultimate fate. In rejecting his argument, the Court erred, as it now concedes. In Walton, the Court mistakenly decided that the Constitution did not entitle capital defendants to a jury trial at the penalty phase. All death row prisoners who advanced the constitutional argument that Walton had unsuccessfully asserted subsequently received the same answer that he did. Some capital defendants continued to assert the claim, hoping that the Court would change its mind. Others believed that it would be futile to continue to make an argument that the Court had just rejected. As a result of the Court's error, some of these individuals have already been executed in violation of their constitutional rights. Others are still awaiting execution. The question before us is: may the state now execute those persons as to [*127] whom the Supreme Court ruled erroneously (directly or indirectly) with respect to their constitutional claims, although it is prevented from executing those as to whom the Court had not yet formally erred? May the state execute the "Jeffrey Alan Waltons" who are now on death row -- the prisoners who previously correctly argued (or were incorrectly deterred from arguing) that their executions would be unconstitutional, the prisoners whose causes were erroneously turned down by the Supreme Court -- the prisoners who were right about the Constitution when the Supreme Court was wrong?

To put it differently, may the state now deliberately execute persons knowing that their death sentences were arrived at in a manner that violated their constitutional rights? Is it possible that prisoners will now be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late -- on a wholly arbitrary date, rather than when it should have? Will we add to all of the other arbitrariness infecting our administration of the death penalty the pure fortuity of when the Supreme Court recognized its own critical error with [*128] respect to the meaning of the Constitution? Can we justify executing those whose legal efforts had reached a certain point in our imperfect legal process on the day the Supreme Court changed its mind, while invalidating the death sentences of those whose cases were waiting slightly further down the line?

I do not think it rational for a society to make its decisions regarding whom it will kill in the manner that my dissenting colleagues suggest. A state's decision to take the life of a human being, if it can be justified at all, must rest on a far less arbitrary foundation. And if our society truly honors its constitutional values, it will not tolerate the execution by the state of individuals whose capital sentences were imposed in violation of their constitutional rights. It should not take a constitutional scholar to comprehend that point.

OTHER RESOURCES

The Daily Blog noted this week (http://capitaldefenseweekly.com/blognews.html):

Lethal Elections: Gubernatorial Politics and the Timing of Executions"

A new study by researchers Jeffrey Kubik and John Moran of Syracuse University, examines the impact of election-year politicking plays in the timing of executions. The research, reported at 46 The Journal of Law & Economics 1 (2003), shows a sharp rise in gubernatorial election years than in other years. Race also played a key factor with African-Americans being substantially more likely defendant to be executed in a given election year than on the probability that a white defendant will be executed. The trend was notably observed in the Southern "death belt" of states.

Wednesday, September 03, 2003

New Book:Death and Justice : An Expose of Oklahoma's Death Row

Mark Fuhrman's new book, Death and Justice : An Expose of Oklahoma's Death Row is out today. The book, a shocking read from one of America's most (in)famous former police detectives, makes a damning read of Oklahoma's death penalty and leads the author (yes that Mark Fuhrman) to conclude that America's current experiment with the death penalty has failed. The book is available at Amazon.com & other bookmongers.

Tuesday, September 02, 2003

Congress back in session:

This fall the Weekly's eyes are being kept on four separate bills making their way through Congress:

-- Victim's Right's Constitutional Amendment:Congress is set to begin hearings on the Victims' Rights Constitutional Amendment that would see a far reaching modification to 1000 years of Anglo-American jurisprudence by modifying certain fundamental aspects of criminal practice and procedure.

-- Patriot ACT II/VICTORY Act:Whether Congress will grant Attorney General Ashcroft new powers, including expanded powers to invade privacy and detain suspects without judicial review, appears increasingly unlikely.

-- Innocence Protection Act:Innocence Protection Act: Hearings were held on the IPA this summer. Although working majorities in both Chambers favor the bill the leadership of the majority party in both chambers does not which may effectively block passage.

-- Prosecutors and Defenders Incentive Act:Congress is expected to again take up offsetting student loan obligations for prosecutors and public defenders ($6,000/annually up to $40,000/total), although in the current fiscal climate passage reminds unlikely.

Death Row Shrinks Again

Death Row again shrinks. The total on death row according to the latest NAACP Legal Defense Fund's "Death Row USA" (out today) dropped to 3,517. Only eight jurisdications saw an increase in the number of people on the row, Alabama, Arizona, California, Missouri, Nevada, Oregon, Virginia, and the Federal Government. The chief cause appears to be fewer juries returning deathand growingly effective criminal/capital defense bar.

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

NEW RESOURCE: Study Examines Politics and the Death Penalty

Posted: September 4, 2003

"Lethal Elections: Gubernatorial Politics and the Timing of Executions," a study by researchers Jeffrey Kubik and John Moran of Syracuse University, reveals that election-year political considerations may play a role in determining the timing of executions. [ More ]

Death Row Sentences Challenged as Court Rules Ring Decision is Retroactive

Posted: September 3, 2003

Relying on the fundamental importance of a defendant's right to a jury trial, a federal appeals court issed a ruling that could overturn many sentences in Arizona, Montana, and Idaho. [ More ]

Investigation of Wrongful Convictions Reveals "Tunnel Vision" by Chicago Polic

Posted: September 3, 200

A recent investigation by a special prosecutor into the Chicago-based "Ford Heights Four" case revealed that police and prosecutors perpetuated a "tunnel vision" mentality that kept them from pursuing the real perpetrators of the crime. [ More

Latest Edition of "Death Row USA

Posted: September 2, 200

The NAACP Legal Defense Fund has released its latest edition of "Death Row USA." The total number of inmates on death row again declined from the previous report, marking a sharp reversal from the years of death row increases between 1973 and 2000. [ More

Yarris Conviction and Death Sentence to be Vacate

Posted: September 1, 200

Delaware County prosecutors and defense attorneys for Nicholas James Yarris have jointly asked the court to vacate his 1982 capital conviction after DNA testing showed that Yarris was not the source of evidence found on the body of the victim. [ More

Louisiana Jury Imposes Death Sentence in Rape Cas

Posted: August 29, 200

Jurors sentenced a man accused of raping his step-daughter in Louisiana to death based on a state law that was adopted in 1995. [ More ]