Lurid Death Appeal Goes To The Top

The Supreme Court used a case that reads like a best-selling legal thriller to consider Monday whether more than 100 death row inmates should get new sentences because judges, not juries, were the final arbiters of their fates.

The court ruled two years ago that juries must have the final say in who receives the death penalty, and the justices must decide whether that ruling should void old death sentences handed down by judges.

During Monday's arguments, the attorney for Arizona prisoner Warren Wesley Summerlin said that Summerlin has tried for more than 20 years to get a sentencing hearing in front of a jury.

"In death penalty cases, juries really do make a difference," Ken Murray told justices. "Judges are human. They have human frailties, as this case shows."

Summerlin was sentenced by a judge with drug problems, one of several elements that makes the case read like pulp fiction.

John Todd, an assistant attorney general, said that the judge did the job just as a jury would, and his findings should not be erased.

The San Francisco-based 9th U.S. Circuit Court of Appeals overturned Summerlin's sentence last year, and noted the unusual facts of his case, saying: "It is the raw material of which legal fiction is forged."

The saga began with a late payment on a piano in April 1981. The finance officer who went to check on the account was found bludgeoned to death in her car trunk. She also was raped. An anonymous caller told police of a premonition that the killer was Summerlin, whose wife owned the piano.

Summerlin's lawyer reached a deal for a plea bargain with a prosecutor, but the deal fell through after the two had a secret sexual relationship.

Summerlin was not told about the affair and new lawyers took up his case because of the conflict. He eventually was sentenced to death by a judge who later lost his job because of a marijuana conviction. The judge has maintained that he did not use drugs before the sentencing.

Justice John Paul Stevens said that Summerlin was "sentenced to death by an unconstitutional procedure."

Todd agreed, but said that the sentencing change required by the court two years ago was not significant enough to warrant reopening old cases.

Arizona contends the brutality of the 1981 rape and slaying of 36-year-old Brenna Bailey justify the death sentence. "Reopening cases such as this, many years after they become final, inflicts financial and emotional costs on the parties, the surviving victims, and the courts," prosecutor John Pressley Todd told justices in a filing.

The 2002 Supreme Court ruling, Ring v. Arizona, forced changes in the death penalty laws of Arizona, Montana, Idaho, Nebraska and Colorado, because those states left it to judges to determine if a killer should be executed. The ruling also cast doubt on death sentencing procedures in other states that used a combination of juries and judges to impose death sentences.

The court's latest decision on retroactivity, expected by the end of June, could affect the cases of at least 86 Arizona death row inmates, including Summerlin, and about 25 others in Idaho, Montana and Nebraska, attorneys said. Other states that could be affected include Alabama, Delaware, Florida, Indiana and Nevada.

The case is Schriro v. Summerlin, 03-526.

By Gina Holland