By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
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By Chris Parker
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It was one of the least-publicized emergency sessions in memory, but one of the more momentous -- at least for death-row inmates, the families of murdered victims, and taxpayers.
Contrary to popular belief, the high court did not demand that juries do the sentencing in death cases. But the majority did side with convicted killer Timothy Ring and ordered the 38 states with the death penalty to have jurors, not judges, determine the "aggravating" circumstances in capital cases.
In Arizona, those factors may include whether the murder was especially "cruel, heinous or depraved," if it was done for money, if the killer had a prior criminal record, and other specified reasons.
Phoenix attorney Paul McMurdie spent days at the Capitol during the special session crafting a new, three-stage process in death-penalty cases that makes juries, not judges, the final arbiter.
"The defense bar decided to just take itself out of the discussion down there," says McCurdie, a respected advocate of capital punishment who is bureau chief of the Maricopa County Attorney's Office's appellate section. "All they said to the legislators was, You're going too fast.' To go there and only say, We need more time' is not being part of the debate."
The result was that pro-death penalty prosecutors pretty much had a free run at legislators. In the end, the lawmakers produced (and Governor Hull signed) a statute modeled after one already in effect in California.
Before Ring, jurors in Arizona were released after convicting someone of capital murder. Then the trial judge allowed the defense team several months or even longer to look for mitigating factors before sentencing.
These days, the jury's work isn't done after the so-called "guilt phase" of a trial. Now, within a day or two after a guilty verdict, the jury hears from prosecutors about how the murder meets the legal requirements for a death sentence -- those aggravating factors.
The jurors then retire to vote on whether those circumstances do exist -- a mere formality so far in every post-Ring case heard so far in Arizona.
But the jurors' job still isn't finished.
Next, jurors hear any mitigating evidence that might lead it to order a life sentence instead of death by lethal injection.
If the jury can't decide unanimously between life and death, the judge must discharge them and start the entire sentencing process with a new panel. (The latter hasn't happened yet in any of the post-Ring jury sentencings in Arizona.)
"There were many interpretations about what Ring meant," McCurdie says. "My fear -- and the fear shared by many prosecutors -- was that the U.S. Supreme Court might come back in a few years and tell us that juries do have to do the actual sentencing. That would have affected many, many cases if the Legislature had gone a different route, to another system of sentencing in capital cases."
One of those different systems still is in effect in Florida, one of the nation's most active death-penalty states. There, jurors only recommend either a life or death sentence to a judge after convicting someone of capital murder. The judge then may override the jury's recommendation.
McCurdie concedes there are numerous legal issues unresolved in the aftermath of Ring.
One immediate question was what would happen to the 125-plus death row prisoners already sentenced by judges. Prosecutors in Arizona had options after Ring came down, including agreeing to new sentencing hearings for everyone on death row (that was improbable) or arguing that Ring sentencing provisions didn't apply to those inmates whose direct appeals have run out.
Not surprisingly, prosecutors chose the latter, soon after defense attorneys asked the Arizona Supreme Court to resentence all death-row inmates to life (with the possibility of parole for inmates who killed before July 1983), or to order new sentencing trials for those inmates.
The court on its own also could have ordered life sentences without the possibility of parole. That's what the Colorado Supreme Court did in February, when it imposed life sentences for two death-row inmates who had been sentenced by judges.
But Arizona's highest court shot down the defense last April 4, with one key exception. First, the state Supreme Court unanimously declined to overturn death sentences of the 90 death row inmates who already had lost their direct appeals.
Conducting more than 100 new sentencing hearings, wrote Justice Ruth McGregor, "would impose a substantial and unjustifiable burden on Arizona's administration of justice."
McGregor also said there was a strong likelihood that witnesses in many older cases would be unavailable, which would unfairly penalize prosecutors.
Arizona defense attorneys have appealed that ruling to the federal Ninth Circuit Court of Appeals.
But the Arizona Supreme Court also said it may order the re-sentencings of up to 29 other death row inmates, including 16 who committed murders in Maricopa County. (The court so far has remanded seven of those cases to this county.)
County taxpayers almost immediately felt the bite of Ring. In February, a report by the county's Office of Management and Budget estimated it would cost about $11 million extra to adjudicate just the remanded cases.