Justices Weigh Sentencings in Capital Cases

WASHINGTON —  The Supreme Court justices struggled Monday over whether jurors, rather than a judge, must decide on a death sentence for a murderer.

The fate of nearly 800 death row inmates may turn on the answer to that question.

Most states, including California, require jurors to decide whether to send a convicted killer to the death chamber. But nine states, including Arizona, call on judges to decide on the proper sentence.

In the past, the Supreme Court had squarely upheld the system of sentencing by judges.

But two years ago, in a New Jersey assault case, the court in a 5-4 decision described the right to a jury trial as fundamental in all cases.

“Any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt,” Justice John Paul Stevens wrote for the court in Apprendi vs. New Jersey, in which the judge handed down an extra sentence after learning that the circumstances of the case could be considered a hate crime. The jury never heard that information.

The logic of the Apprendi ruling requires that his client’s death sentence be overturned, a lawyer for an Arizona death row inmate said Monday.

A jury convicted Thomas Ring and several others of conspiring to rob a Wells Fargo van in Phoenix, a crime that led to the death of the driver. Under Arizona law, that conviction would normally lead to a life sentence. In a separate hearing, a judge heard testimony from an accomplice, who said that Ring had shot the driver and had bragged about it. The judge then sentenced Ring to die.

Andrew Hurwitz, Ring’s lawyer, said the jury should have heard this evidence and decided upon Ring’s guilt as the triggerman. The “basic constitutional principle” is that “a jury of your peers” must decide whether you are guilty of the ultimate crime, Hurwitz said.

However, Arizona Atty. Gen. Janet Napolitano said the justices should uphold Ring’s death sentence. The jury found him guilty for his involvement in a crime that led to a murder, and that is sufficient, she said.

Beyond that, Arizona’s officials had relied on the court’s earlier rulings that allowed for sentencing by judges. It’s too late now to upset this system, she argued.

For their part, the justices sounded sharply divided in the case of Ring vs. Arizona, 01-488.

This is the rare case where Justice Antonin Scalia may be the swing vote.

Two years ago, he joined the majority decision to overturn the extra sentence handed out in the New Jersey hate crimes case. But on Monday, he said he did not believe that ruling required him to vote to overturn Arizona’s death sentence.

“We’ve already said it is enough for this finding [of the triggerman’s role] to be made by the judge,” Scalia said. It is too late to reverse course now, he said, echoing the state’s argument.

Meanwhile, the court took up the case of a Tennessee death row inmate to decide whether a belated discovery of new evidence can be used to reopen an old case.

Lawyers for the inmate, Abu-Ali Abdur’Rahman, say he would not have been sentenced to death had the jury been told about the abuse he had suffered as a child. But state prosecutors said it was too late now to consider such evidence.

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