Ninth life?


Issue: "Arafat: The devil you know," Sept. 20, 2003

SAYING THE CASE OFFERED THE "RAW MATERIAL from which legal fiction is forged," the U.S. Court of Appeals for the 9th Circuit this month affirmed the conviction of Arizona murderer Warren Summerlin.

That raw material included: "A vicious murder, an anonymous psychic tip, a romantic encounter that jeopardized a plea agreement, an allegedly incompetent defense, and a death sentence imposed by a purportedly drug-addicted judge." Mr. Summerlin's guilt, however, was not in doubt; he had repeatedly incriminated himself. Since the Supreme Court of Arizona affirmed his conviction and death sentence, Mr. Summerlin lost four more state appeals and one federal appeal.

While affirming the conviction, however, the 9th Circuit overturned Mr. Summerlin's death sentence because a judge imposed it rather than a jury, a practice banned last year by the Supreme Court. Ordinarily, new rules apply only to future cases, but the 9th Circuit said this new rule applies retroactively, even to this 20-year-old conviction.

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The group of 11 judges deciding this case, which contained just one Republican appointee, voted for this activist result by a lopsided 8-3 margin. That ideological imbalance may help explain why the Supreme Court overturns the 9th three times as often as any other circuit. Unless reversed by the Supreme Court, the decision will reopen more than 100 death-penalty cases in the states and territories covered by the 9th Circuit.


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