Death-penalty ruling still resonates 10 years later

2012-04-23T09:00:00Z 2012-04-23T15:45:05Z Death-penalty ruling still resonates 10 years laterBy KEVIN O'HANLON / Lincoln Journal Star JournalStar.com

It has been nearly 10 years since the U.S. Supreme Court ruled in an Arizona case, prompting then-Gov. Mike Johanns to call Nebraska lawmakers into a special session to change how the state sentences people in capital cases.

But the verdict is still out on the overall effect of the case known as Ring v. Arizona.

"I think Ring has had a significant effect on the death penalty, but the impact has not been as broad as some predicted," said Richard Dieter, executive director of the Death Penalty Information Center.

The June 2002 ruling said that juries, not judges, must have the final say in who gets the death penalty. In Nebraska, only judges had handed down death sentences since state lawmakers decided in the 1970s there was the potential of bias by juries.

The ruling also forced changes in death penalty laws in Arizona, Montana, Idaho and Colorado, because those states also left it to judges to determine if a killer should be executed.

And it wasn't long after that lawyers began questioning whether Ring would apply retroactively to death row inmates sentenced by judges.

Lower courts were divided. The Nebraska Supreme Court was among those to rule that the U.S. Supreme Court ruling was not retroactive. U.S. District Court Judge Joseph Bataillon of Omaha ruled that is was.

In 2004, Nebraska was joined by 15 other states in a motion with the U.S. Supreme Court in a case that stood to affect hundreds of death-row inmates nationwide -- including five in Nebraska. Nebraska Solicitor General J. Kirk Brown was joined in the brief by the attorneys general of Alabama, Colorado, Delaware, Florida, Illinois, Indiana, Montana, Nevada, Oklahoma, Ohio, South Carolina, South Dakota, Texas, Utah and Virginia.

"The implications of retroactivity are staggering," Nebraska Attorney General Jon Bruning said at the time. "If the Supreme Court rules in favor of retroactivity, we could be forced to retry the penalty phase of the five death-penalty cases decided by the Nebraska Supreme Court before the Ring decision was handed down."

The ruling could have affected five of Nebraska's seven death-row inmates at the time: Carey Dean Moore, Charles Jess Palmer, Michael Ryan, John Lotter and David Dunster.

The high court eventually ruled in Schriro v. Summerlin that Ring would not be retroactive, overturning a ruling by the 9th U.S. Circuit Court of Appeals.

In Summerlin, Justice Antonin Scalia wrote that "we give retroactive effect to only a small set of 'watershed rules of criminal procedure implementing the fundamental fairness and accuracy of the criminal proceeding.' That a new procedural rule is 'fundamental' in some abstract sense is not enough; the rule must be one 'without which the likelihood of an accurate conviction is seriously diminished.'"

Said Dieter of the Death Penalty Information Center: "Many death row inmates received no relief."

Overall, he said, juries are not automatically more lenient than judges.

"And at least in Arizona, it has taken some time for the defense bar to adapt to the kind of sentencing presentation that works best with juries," he said. "It is a special skill. In the long run, the requirement of a unanimous jury for a death sentence -- which is what most states employ -- gives the defendant better odds of avoiding the death penalty. Individual jurors may be reluctant to impose death, knowing how many mistakes have been made in convictions in recent years."

Dieter said the increased reliance on jurors in capital cases poses another problem for the death penalty.

Jurors in most death-penalty states have to be "death-qualified" -- meaning they are not categorically opposed to the imposition of capital punishment or do not believe the death penalty must be imposed in all instances of capital murder.

"Many of those with doubts about the death penalty are rejected from serving," Dieter said. "That group tends to have more minorities, more women and more members of certain religious beliefs. This raises concern about equal protection, civil rights of jurors and religious liberty. If challenging the death penalty is associated with protecting innocent people's rights, it is likely to attract more sympathy than protecting the rights of convicted murderers."

In Nebraska, jurors decide only whether aggravating factors exist. That could include things such as whether the killing was especially heinous or whether it was committed for money. Aggravating factors are supposed to be weighed against mitigating factors, which could include a defendant's background.

A three-judge panel then decides if the death penalty is warranted if aggravating factors are found by the jury.

Jerry Soucie, a lawyer with the Nebraska Commission of Public Advocacy, said jurors in Nebraska are not death-qualified. Instead, the courts use special jury instructions, such as: "Members of the jury, you have nothing to do with the sentence imposed, whether that be life or death. You are simply to find whether certain aggravating circumstances exist. Do you have any personal or religious beliefs that would prevent you from discharging that duty as a juror?"

Lincoln attorney and long-time death penalty opponent Alan Peterson said the Ring ruling shows the absurdity of the death penalty.

"Long before Ring, several death row prisoners in Nebraska had already appealed on this exact same basis -- they had argued that they were unconstitutionally deprived of that jury consideration that could lead to a death penalty and the Nebraska courts rejected this constitutional argument," he said.

One of those inmates was Carey Dean Moore, whose appeal raising the issue came in 1982.

"Moore made the claim ... on his very first appeal," Peterson said. "The factual situation illustrates the absurdity and inconsistency of application in death penalty law development over the decades.

"This, in my opinion, illustrates how overly complicated, unfair and broken the death penalty system is," he said. "No wonder state after state is giving up on it, due to its cost, its aggravating slowness and its arbitrariness."

Meanwhile, Ring still is resonating in the courts.

Last year in Florida, for example, U.S. District Judge Jose Martinez declared Florida's death penalty violated Ring because jurors are not required to make findings beyond a reasonable doubt on the aggravating factors that can result in a sentence of death.

"Even though it has been 10 years, the legal issues surrounding Ring have not been settled," Dieter said.

Reach Kevin O'Hanlon at 402-473-2682 or kohanlon@journalstar.com.

Copyright 2015 JournalStar.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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