On December 16, the U.S. Ninth Circuit Court of Appeals tabled its discussion of whether Robert Comer is mentally competent to become a so-called death row "volunteer" -- that is, volunteer to be executed. Earlier this year, federal judge Roslyn Silver ruled she had "no doubt" Comer was capable of making up his own mind about being executed ("Arizona's Worst Criminal," Paul Rubin, May 2).
But by a 2-1 vote, a Ninth Circuit panel said it would be best to wait until resolution of a pending case related to Ring v. Arizona before it considers Comer's request. The U.S. Supreme Court, ruling earlier this year in the case of convicted Phoenix killer Timothy Ring, said juries, not judges, must decide if death sentences for convicted killers are warranted.
Like all other murderers in Arizona until the Ring case, Comer was sentenced by a judge. But the panel said it won't be known if the high-court ruling should be applied retroactively until the related case is decided. If it is to be applied retroactively, the appellate court's decision on Comer's death wish would become moot.
"It would serve no rational purpose for this court to engage in further litigation which may or may not prove to be decisive," Judge Warren Ferguson wrote for the majority.
The judge added that, if Ring is applied retroactively, he's sure the state of Arizona wouldn't seek to execute a person whose death sentence was unconstitutional.
In her dissent, Judge Ann Rymer wrote that Ring "has nothing to do with Comer's competence to forgo further review and the voluntariness of that decision."
That's exactly what Comer's court-appointed attorneys, Holly Gieszl and Mike Kimerer, argued in their December 19 motion to the federal panel seeking reconsideration of its recent ruling. The attorneys said Comer had filed an affidavit on the subject of Ring with Judge Silver even before she ruled on his mental competency.
"[Comer] does not wish to assert a Ring challenge," the lawyers wrote.
Now 45, Comer has been locked up since 1987, after he murdered a stranger at a campground near Apache Lake, and raped a woman who'd been camping nearby. Police arrested Comer and a female companion after a manhunt that ended atop a hill in remote Gila County.
"[This] has to do with me paying my debt to society," Comer told Silver at his hearing earlier this year. ". . . I ended a whole bunch of innocent people's lives, and changed their lives forever."