METHOD OF EXECUTION

Counsel Issues

On November 5, 2003, the House of Representatives passed the Advancing Justice Through DNA Technology Act of 2003. This Act includes Senator Leahy's Innocence Protection Act of 2003. The Innocence Protection Act provides for post-conviction DNA testing in appropriate cases, as well as a grant program designed to improve the quality of legal representation provided to indigent defendants in State capital cases. Click here for a summary of the provisions in the Innocence Protection Act of 2003.

Batson

On February 25, 2003, the Supreme Court issued its decision in Miller-El v. Cockrell , 537 U.S. 322 (2003), ruling that Miller-El was entitled to a COA regarding his Batson claim. Click here to read a summary of the opinion.

On remand, the Fifth Circuit held that Miller-El was not entitled to relief on his claim of Batson error.Miller-El v. Dretke, 361 F.3d 849 (5^th Cir. 2004).

The Supreme Court granted certiorari a second time and again reversed the Fifth Circuit. Miller El v. Dretke, 545 U.S. ___, 2005 WL 1383365 (June 13, 2005. The Court ruled 6-3 that the trial prosecutors violated Batson v. Kentucky, 476 U.S. 79 (1986), by using their peremptory challenges to remove two black prospective jurors based on their race. Clear and convincing evidence established that the state court’s finding of no purposeful discrimination was erroneous. Further, the state court’s finding of no purposeful discrimination was based on an unreasonable determination of the facts in light of the evidence in the record. The majority opinion was authored by Justice Souter, and joined by Justices Stevens, O’Connor, Kennedy, Breyer and Ginsburg. Justice Thomas dissented, joined by the Chief Justice and Justice Scalia.

In Johnson v. California, 545 U.S. ___, 2005 WL 1383731 (June 13, 2005), the Supreme Court reversed the California Supreme Court’s ruling that to state a prima facie case of purposeful discrimination under Batson, the objector must show that it is more likely than not that the other party’s peremptory challenges, if unexplained, were based on impermissible group bias. Justice Stevens wrote the majority opinion. Justice Thomas dissented.

For successful juror misconduct cases, go to Constitutional Issues: Cases on Point, Jury Misconduct

INSTRUCTIONAL ISSUES

In Beard v. Banks, 2004 WL 1402567 (June 24, 2004), the Supreme Court held that Mills announced a new rule of constitutional law that is not retroactively applicable to cases on collateral review.

Pending in the Supreme Court is Goughnour v. Payton, 03-1039 (cert granted May 24, 2004). The case below is Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (en banc). The question presented is:

In Horn v. Banks, 122 S.Ct. 2147 (2002) (per curiam), the Supreme Court ruled that the AEDPA does not render Teague v. Lane inoperative and remanded to the Third Circuit to consider whether Teague precluded relief on a claim of error under Mills v. Maryland. Banks is one of a number of Pennsylvania death penalty cases where relief has been granted under Mills v. Maryland. See, e.g., Hackett v. Price, 212 F.Supp.2d 382 (E.D.Pa. 2001); Peterkin v. Horn, 179 F.Supp.2d 518 (E.D. Pa. 2002); Laird v. Horn, 159 F.Supp.2d 58 (E.D. Pa. 2001); Henry v. Horn, ___ F.Supp.2d ___, 2002 WL 1018926 (E.D.Pa. May 16, 2002); Abu-Jamal v. Horn, ___ F.Supp.2d ___, 2001 WL 1609690 (E.D.Pa. Dec. 18, 2001); Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001).

The most recent favorable Mills case is Commonwealth v. Chambers, ___ A.2d ___, 2002 WL 31122101 (Pa. Sept. 26, 2002), where the error was addressed in the context of an ineffective assistance of counsel claim. The jury was charged as follows:

While portions of this instruction were accurate, the Pennsylvania Supreme Court acknowledged, as argued by Chambers, that:

After Chambers was sentenced to death, trial counsel conceded that he had no strategic basis for failing to object to the improper instruction. Given that admission, the Pennsylvania Supreme Court concluded that Chambers’ death sentence could not stand, explaining:

Again sitting en banc, a majority of the Ninth Circuit found in Valerio v. Crawford, ___F.3d___, 2002 WL 31056609 (9th Cir. Sept. 17, 2002) (en banc) that a Nevada death row inmate was entitled to sentencing phase relief due to an erroneous instruction.

Petitioner had alleged that the "torture, depravity of mind, or mutilation of the victim" instruction given to the jury at sentencing was unconstitutional under Godfrey v. Georgia, and that the state supreme court failed to cure the error on direct appeal. The Ninth Circuit began by finding it "clear," in light of Godfrey, Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989), and Robins v. State, 106 Nev. 611 (Nev. 1990), that "the aggravating-circumstance instruction concerning depravity of mind, in the form in which it was given to the jury, was unconstitutional." 2002 WL 31056609 at *3-4. Because of its unconstitutionality, "the use of that instruction at [petitioner]'s sentencing was contrary to clearly established law . . ." 2002 WL 31056609 at *8.

The court turned next to whether, despite the impropriety of the instruction given to the jury, the state supreme might have cured the error. Here, the court first ascertained that the state court "did not perform a harmless-error analysis under Chapman," and did not "reweigh under Clemons," but instead "affirmed the sentence by applying a narrowed construction and engaging in de novo factfinding under Walton," and went on to determine that, "[f]or two independently sufficient reasons," this operation did not cure the error. 2002 WL 31056609 at *10. First, the court found that the state court's use of the Walton procedure was erroneous because "Walton does not allow a state appellate court to apply a narrowing construction to an unconstitutional instruction, and to engage in de novo factfinding, when the penalty-phase factfinder has been a jury." 2002 WL 31056609 at *11. Thus, "the Nevada Supreme Court's de novo factfinding under Walton did not - because it could not - cure the error caused by the unconstitutionally vague jury instruction." 2002 WL 31056609 at *11.

Second, the court found that, even if Walton could be used to the cure instructional error in petitioner's case, "the Nevada Supreme Court did not engage in the 'close appellate scrutiny' required by Stringer and Jeffers, and . . . its analysis under Walton [therefore] did not cure the erroneous jury instruction . . ." 2002 WL 31056609 at *13.

Having found constitutional error, the court moved on to determine whether that error might be harmless. After noting that "[b]ecause the instructional error was not cured (and was not curable) under Walton, it is possible that the use of the unconstitutionally vague 'depravity of mind' jury instruction is not susceptible to harmless error review," the court went on to state that it "need not decide whether the structural error approach of Maynard and Godfrey should be applied because we hold that the Brecht harmless error standard should be applied, if a Walton analysis is available, based on the failure of the Nevada Supreme Court to provide 'close appellate scrutiny.'" 2002 WL 31056609 at *13. With regard to the Brecht standard, the court observed that "[t]he state, rather than [petitioner], bears the 'risk of doubt' in our harmless-error analysis," such that "the state must provide us with a 'fair assurance' that there was no substantial and injurious effect on the verdict." 2002 WL 31056609 at *14 (citations omitted). The court went on to conclude that the error in this case was not harmless, explaining as follows:

2002 WL 31056609 at *15.

In Blue v. Cockrell, 298 F.3d 318 (5th Cir. 2002), habeas relief was granted to a Texas death row inmate based on constitutionally infirm sentencing instructions. At trial, petitioner had presented evidence of mental retardation and childhood abuse. The jury then received instructions substantially the same as those condemned in Penry v. Johnson, 532 U.S. 782 (2001)(Penry II.). The appeals court agreed with the district court’s finding that supplemental instructions were needed in order for the jury to give effect to the mitigating evidence.

Under circuit precedent, to establish reversible Penry error the petitioner must establish that mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. The Fifth Circuit has found that to be "constitutionally relevant," "the evidence must show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, ... and (2) that the criminal act was attributable to this severe permanent condition." Davis v. Scott, 51 F.3d 457, 460-61 (5th Cir.1995) (internal quotation marks and citation omitted.)

In Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), the Fifth Circuit denied relief on a Penry claim in part because the petitioner had failed to present evidence at trial linking his IQ of 67 to the capital murder. Here, in contrast, the jury was entitled to find a nexus between the capital crime and petitioner’s retardation and other mental disorders from the testimony of the state's expert who opined that petitioner’s various mental impairments made it almost inevitable that he would be in conflict with the law. Because the instructions could have precluded the jury from giving mitigating effect to constitutionally relevant evidence, petitioner is entitled to sentencing relief.

Ambiguous wording in the verdict sheet concerning the need for unanimity for aggravating circumstances, when coupled with the jury’s obvious confusion as reflected in its response on the verdict form and the trial court’s refusal to ask the jury for clarification of its interpretation of the unanimity requirement, required reversal of the death sentence in State v. Nelson, 803 A.2d 1 (N.J. 2002).

Three aggravating factors were submitted to the jury. The jurors unanimously found that factors A and C had been proven beyond a reasonable doubt. Under state law, the sentence was to be determined by weighing the unanimously found aggravating factors against any mitigating factors. On a special verdict form, the jurors were directed as follows: "If you have unanimously found more than one aggravating factor present, then indicate as to each factor whether it, by itself, outweighs the mitigating factors beyond a reasonable doubt." The verdict sheet provided for "yes" or "no" findings for the three charged aggravating factors. In filling out the form, the jury failed to simply answer "yes" or "no," and instead indicated that 12 jurors had found aggravating factors A and C to each individually outweigh the mitigating circumstances, and that 1 juror had voted "no" as to factor B, while 11 others had voted "yes." This response raised a question about whether the 11 jurors who found factor B to singularly outweigh the mitigation had improperly considered that factor in weighing the totality of the aggravating factors against the mitigating circumstances. When defense counsel expressed concerns about the form, the prosecution indicated that it would not object to a request for clarification from the jury. Despite this invitation, the trial court refused to make any inquiry regarding the verdict form. On this record, the New Jersey Supreme Court concluded that the trial court’s inaction was error. It further noted:

The New Jersey Supreme Court then rejected the state’s argument that the error was harmless in light of the jury’s express finding in the special verdict section that aggravating factors A and C each individually outweighed the mitigating factors. The court relied on the fact that the jury knew that the defendant’s sentence was to be determined by the process of weighing the combined aggravating factors against those in mitigation, and it had not been told that there was any significance to the additional findings in the special verdict form. It explained:

A death sentence was reversed in People v. Josephs, 803 A.2d 1074 (N.J. 2002), where an error in the sequential instructions to the jury on own-conduct murder -- on which death eligibility was premised -- and accomplice liability could not be deemed harmless.

On June 24, 2002, the Supreme Court overruled Walton v. Arizona, 497 U.S. 639 (1990), and held that "[c]apital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring v. Arizona, 122 S.Ct. 2428 (2002). Click here for a summary of the Ring decision .

Under Arizona law at the time of Ring’s capital trial, the trial judge was given the sole responsibility for determining the existence of aggravating factors which were necessary to render a defendant eligible for the death penalty. Four States other than Arizona also entrusted solely to the trial court both capital sentencing factfinding and the ultimate sentencing determination: Colorado, Idaho, Montana, and Nebraska. Alabama, Delaware, Florida and Indiana have or had hybrid sentencing schemes in which the jury renders an advisory verdict but the judge is the ultimate sentencer.

On December 1, 2003, the Supreme Court granted the Warden's petition for writ of certiorari in Schriro v. Summerlin, 03-526 (case below: 341 F.3d 1082 (9th Cir.)(en banc). The questions presented are: (1) Did the Ninth Circuit err by holding that the new rule announced in Ring is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality)? (2) Did the Ninth Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague'sexception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?

Federal Court Developments

Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003) [Petitioner’s Ring v. Arizona challenge to his death sentence was both procedurally defaulted and barred by Teague. Petitioner never raised a Sixth Amendment right to a jury claim in the Florida courts, and since such a claim was not novel, petitioner could not show the ‘cause’ required to overcome the procedural bar. Because Ring was "an extension of Apprendi,"the court’s determination in McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001), that Apprendi does not apply retroactively "applies equally to Ring." Ring announced a procedural, as opposed to substantive, rule because it "altered only who decides whether any aggravating circumstances exist and, thus, altered only the fact-finding procedure." Finally, Ring does not fall within either of Teague’s two exceptions.]

Daniels v. Lee, 316 F.3d 477 (4^th Cir. 2003) ["Because the principles of Ring, Harris, Jones, and Apprendi had not been clearly established when Daniels's conviction became final in 1995, (footnote omitted) those decisions cannot serve as bases for invalidating either his murder conviction or his sentence." "Under 28 U.S.C. § 2254(d)(1), we review ‘clearly established law, as determined by the Supreme Court of the United States ... as of the time of the relevant state court decision.’ (Citation omitted.) The phrase ‘the time of the relevant state court decision,’ however, ‘obviously refers to the time of the state court conviction being attacked ... and not the time of the state court decision denying collateral relief from the conviction.’ Williams v. Cain, 229 F.3d 468, 475 n. 6 (5th Cir.2000). Indeed, any other interpretation would ‘almost completely eviscerate the previous law of non-retroactivity and would vastly expand, rather than add a new constraint on, the power of federal courts to grant habeas relief to state prisoners.’ Id. (citing Williams v. Taylor, 529 U.S. at 378- 79, 120 S.Ct. 1495)."]

But see Horn v. Banks, 122 S.Ct. 2147 (2002) (per curiam) [AEDPA does not render Teague v. Lane inoperative. Rather, "in addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state."]

Moore v. Kinney,320 F.3d 767 (8th Cir.) (en banc), cert. denied 123 S.Ct. 2580 (2003) [In a footnote, the court observed that for purposes of successor petitions under 28 U.S.C. 2244(b)(2)(A), "[a]bsent an express pronouncement on retroactivity from the Supreme Court, the rule from Ring is not retroactive."]

Trueblood v. Davis, 301 F.3d 784, (7^th Cir. 2002) [In case involving a first federal habeas petition, the appeals court notes at the end: "The parties agree that we cannot consider Ring in deciding this appeal because the Supreme Court has not yet held it to be retroactive," and cites to a case concerning retroactively principles related to successor petitions.]

Lambert v. McBride, ___ F.3d ___, 2004 WL 736876 (7^th Cir. April 7, 2004) [Teague bars application of Ring to cases on collateral review. Ring is a procedural ruling and it fits neither of Teague's exceptions.]

Ben-Yisrayl v. Davis, 245 F.Supp.2d 973 (N.D. Ind. 2003) [In case involving first federal petition, district court is bound by Seventh Circuit's "ruling" in Trueblood that Ring is not retroactively applicable to cases on collateral review.]

Szabo v. Walls, 313 F.3d 392 (7^th Cir. 2002) ["Given Teague, it is Walton and not Ring that governs Szabo's claims on collateral attack."]

Cannon v. Mullin, 297 F.3d 989 (10^th Cir. 2002) [The combination of Teague, Ring, and the cases in the Apprendi line do not render the rule announced in Ring retroactively applicable for purposes of filing a successor petition under § 2244(b)(2)(A). The holding in United States v. Mora, 293 F.3d 1213 (10th Cir.2002), that Apprendi announced a rule of criminal procedure forecloses Cannon's argument that Ring announced a substantive rule.]

Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003) [Ring may not be applied retroactively to cases on collateral review.]

In re Johnson, 334 F.3d 403 (5th Cir. 2003) [Although not deciding the issue, the court "question[s] whether Johnson's claims based on Ring are available to him on collateral review." The court has previously held that Apprendi did not announce a new rule of substantive law and is not retroactively applicable to convictions that became final before the decision was announced.

United States v. Brown, 305 F.3d 304 (5th Cir.2002). "Since the rule in Ring is essentially an application of Apprendi, logical consistency suggests that the rule announced in Ring is not retroactively available."]

Kunkle v. Dretke, 352 F.3d 980 (5th Cir. 2003) [Because Apprendi has been found by the 5th Circuit to constitute a new rule that cannot be applied retroactively, this dooms petitioner's argument that Apprendi and Ring require the State to prove beyond a reasonable doubt any "unadjudicated offenses" used by it as support for the special issues in a capital case.]

United States v. Allen, 357 F.3d 745 (8th Cir. 2004) [On remand from Supreme Court, death sentence is vacated because the indictment failed to charge at least one statutory aggravator and the constitutional error cannot be deemed harmless.]

United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) ["[W]ith the exception of the fact of prior convictions, those intent and aggravating factors which the government intends to rely upon to render a defendant death- eligible under the FDPA are the functional equivalent of elements of the capital offenses and must be charged in the indictment, submitted to the petit jury, and proved beyond a reasonable doubt." The court later clarifies, however, that only one intent and one aggravating factor need be charged in the indictment because that is all that is all the jury is required to find in order for the defendant to be eligible for the death penalty. Here, the indictment was not defective because the "other crime" aggravator was adequately alleged in the indictment and because the prior conviction aggravators were not required to be alleged in the indictment at all.]

United States v. Battle, 264 F.Supp.2d 1088 (N.D. Ga. 2003) ["[T]his Court interprets Ring to hold only that a defendant in a capital case has a right to jury trial on aggravating factors. Ring does not compel the conclusion that Defendant's indictment, in addition to the notice of intent to seek the death penalty, should have set forth the aggravating factors." Ring is a procedural, rather than substantive, rule. Teague applies to claim that Sixth Amendment requires charging aggravating circumstances in the indictment, and the claim fits neither Teague exception.]

Ryan v. Clarke, 287 F.Supp.2d 1008 (D. Neb. 2003) [In denying COA regarding Apprendi-Ring claim, district court states, among other things, that even if Ring was retroactively applicable to cases on collateral review, any error would be harmless in this case because no reasonable jury could have come to conclusions different than the trial judge regarding the aggravating circumstances.]

Palmer v. Clarke, 293 F.Supp.2d 1011 (D. Neb. 2003) [The Ring decision announces a substantive rule of criminal law and must be accorded retroactive effect. Petitioner's death sentence is constitutionally infirm given than the Nebraska death penalty scheme, like the Arizona scheme at issue in Ring, exposed petitioner to a greater punishment than that authorized by the jury's guilty verdict.]

Sibley v. Culliver, 243 F.Supp.2d 1278 (M.D. Ala. 2003) [Ring, like Apprendi, did not announce a substantive rule and it may not be applied retroactively to Sibley's case which is on collateral review.]

Alabama

In Stallworth v. State, ___ So.2d , 2003 WL 203463 (Ala.Crim.App. Jan. 31, 2003), the Alabama Court of Criminal Appeals ruled that Ring did not change prior case law holding that aggravators do not need to be pled in an indictment.

In Ex Parte Waldrop, ___ So.2d ___, 2002 WL 31630710 (Ala. Nov. 22, 2002), the Alabama Supreme Court rejected a death row inmate’s argument that his sentence was invalid under Ring v. Arizona because the judge, rather than the jury, made the determination that aggravating circumstances existed, and that those circumstances outweighed those in mitigation. The state supreme court first acknowledged that under Alabama law at least one statutory aggravating circumstance under § 13A-4-49 has to be found to exist in order for a defendant convicted of a capital offense to be sentenced to death. It then pointed out, however, that many of the capital offenses defined by § 13A-5-40 "include conduct that clearly corresponds to certain aggravating circumstances found in § 13A-5- 49." Further, state law provides that when a defendant is found guilty of a capital offense, "any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentencing hearing." § 13A-5-45(e). In Waldrop’s case, because he was convicted of two counts of murder during a robbery in the first degree, the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery was necessarily proven to the jury beyond a reasonable doubt. And since only a single aggravator is required under state law to render a defendant death eligible, Ring was not violated in this case even though an additional aggravator was found by the trial court.

The state court then turned to Waldrop’s contention that Ring required both that the weighing of aggravating and mitigating circumstances be conducted by a jury, and that the standard of proof on that issue be that of beyond a reasonable doubt. The premise of Waldrop’s argument was that the weighing process is a "finding of fact" that raises the authorized maximum punishment to the death penalty. The Alabama Supreme Court disagreed, explaining:

Arizona

On August 1, 2002, Arizona Governor Hull signed a bill into law that requires juries to determine all three parts of a capital punishment case: guilt, whether aggravating circumstances exist warranting a death sentence and whether to impose the death penalty. The bill carried an emergency clause, which put it into immediate effect. (8/2/02 Associated Press (AP) Newswires 15:03:00.) See Arizona Criminal Code §13-703.01

In State v. Towery, 64 P.3d 828 (Ariz. 2003), the Arizona Supreme Court ruled that Ring v. Arizona does not apply retroactively to cases that were final at the time of the decision. Applying Teague v. Lane, the state court first found that Ring announced a rule that was not dictated by existing precedent at the time the petitioners’ cases became final. Next, the court rejected the petitioner’s contention that Ring announced a substantive rule, which would be entitled to retroactive application, because the decision determined the essential elements of capital murder in Arizona. The Arizona Supreme Court looked to Apprendi in this part of its analysis, and pointed out that the United States Supreme Court specifically described Apprendi as a procedural decision. Furthermore, the courts that have addressed Apprendi's retroactive effect have consistently concluded that Apprendi announced a procedural rule. According to the Arizona Supreme Court, "[l]ogic dictates that if Apprendi announced a procedural rule, then, by extension, Ring [] did also." The court also observed that Ring "changed neither the underlying conduct that the state must prove to establish that a defendant's crime warrants death nor the state's burden of proof; it affected neither the facts necessary to establish Arizona's aggravating factors nor the state's burden to establish the factors beyond a reasonable doubt." Instead, Ring simply changed "who decides whether any aggravating circumstances exist, thereby altering the fact-finding procedures used in capital sentencing hearings."

Turning to Teague’s two exceptions, the Arizona Supreme Court concluded that neither applied. The first exception was inapplicable because Ring did not forbid either the criminalization of any conduct or the punishment in any way of any class of defendants. As to the second exception, this required two findings: (1) that infringement of the rule would seriously diminish the likelihood of obtaining an accurate conviction; and (2) the rule alters the court’s understanding of the bedrock procedural elements essential to the fairness of a proceeding. The Arizona Supreme Court found "no reason to believe that impartial juries will reach more accurate conclusions regarding the presence of aggravating circumstances than did an impartial judge." But even assuming the Ring rule did somehow improve accuracy, Ring did not meet the second test of the exception at issue. The Arizona Supreme Court noted, among other things, the Supreme Court’s ruling in Neder v. United States that the failure to instruct on an element of an offense was not structural error, and that it did not necessarily render a criminal trial fundamentally unfair. "Consequently, it would be inconsistent with Neder to now find that Ring [] is a watershed rule that ‘implicate[s] the fundamental fairness of the trial.’"

Finding that Ring was not retroactive under Teague, the court then turned to Allen v. Hardy, 478 U.S. 255 (1986) (per curiam), which Arizona courts also look to on questions of retroactivity. This analysis requires the weighing of three factors: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Particularly persuasive to the court in this section is the fact that the Supreme Court relied on the Allen test to find that its holding in Duncan v. Louisiana, 391 U.S. 145 (1968) – which applied the Sixth Amendment right to a jury to the states through the Fourteenth Amendment – did not apply retroactively. See DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam). The court then quickly explained why none of the Allen factors support retroactivity: (a) the Ring rule does not promote accuracy; (b) the justice system relied in good faith on Walton v. Arizona; and (c) retroactive application of Ring would require resentencing in approximately 90 cases.

On April 3, 2003, the Arizona Supreme Court issued its decision in State v. Ring, et al, 65 P.3d 915 (Ariz. 2003). This case involves the consolidated appeal of the 31 death row inmates whose cases were pending on direct appeal at the time Ring v. Arizona was decided by the United States Supreme Court. This decision concerns only issues that the state supreme court requested briefing on. The sentencing issues in each defendant’s case will be decided in separate opinions.

The Arizona Supreme Court ruled that the error identified in Ring is not structural. In reaching this conclusion the court looked primarily to Neder v. United States, 527 U.S. 1 (1999), and United States v. Cotton, 535 U.S. 625 (2002). Thus, automatic reversal is not required for inmates who were sentenced under the statute found unconstitutional in Ring. Instead, the Arizona Supreme Court will conduct harmless error review in each case.

The Arizona Supreme Court further held that neither the Sixth Amendment nor the Arizona Constitution requires a jury to determine the two statutory aggravating factors involving prior criminal convictions. As to the Sixth Amendment, it explained: “Our constitutional system requires adherence to the rule of law established in Almendarez-Torres [v. United States, 523 U.S. 224 (1998)] unless and until the Court unequivocally disapproves its holding.”

The state supreme court did find an exception as to one of the prior conviction aggravators as it existed before 1993. At that time, the aggravating circumstance could be found when “[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” State law did not provide a definition for “violence” in this context. Thus, the judge was required to go beyond the mere fact that the prior conviction existed and had to engage in additional fact finding in order to find this aggravator present. Under Ring, a defendant was entitled to have a jury conduct such fact finding. Although acknowledging the existence of this exception, the court then found it inapplicable in each of the consolidated cases.

The Arizona Supreme Court then turned to the question of whether the finding of an aggravating circumstance could ever be implicit in the jury’s guilt phase verdicts. It found that “the pecuniary gain and multiple homicide aggravators usually are not implicit in a jury’s verdict,” and that “the age of the victim [aggravator] can be implicit in the verdict, if the jury simultaneously convicts the defendant of an offense that includes the age of the murdered victim as an element of the crime.” (Arizona has an aggravating factor for when the age of the victim was less than fifteen years, or was seventy years or older.)

The pecuniary gain aggravator requires proof that the murder would not have occurred but for the defendant’s pecuniary motive. According to the court, “[d]etermining whether a defendant murdered his victim for pecuniary gain requires a highly fact-intensive inquiry. The state must establish the connection between the murder and motive through direct or strong circumstantial evidence.” The finding that a defendant committed a robbery or burglary does not establish that the killing was for pecuniary gain. Therefore, the court will apply a harmless error analysis in cases with the pecuniary gain aggravator. “In those instances in which no reasonable jury could find that the state failed to prove a pecuniary gain motive beyond a reasonable doubt,” the court will find harmless error affecting that factor. In other instances, it will determine whether a remand for resentencing is required.

Similarly, the court found that the multiple homicides aggravating circumstance requires special factual analysis because the factor applies only where the killings took place during “one continuous course of criminal conduct.” A jury verdict convicting a defendant of two or more homicides does not in itself establish that the multiple homicides aggravator is applicable. The court will therefore apply a harmless error analysis to cases with the multiple homicide aggravator. The error will be deemed harmless as to that factor “in those cases in which no reasonable jury could find that the state failed to prove [the multiple homicide aggravator] beyond a reasonable doubt.” In other instances, the court will determine whether a remand for resentencing is required.

For the age-related aggravator, the Ring error will be found harmless in cases where “the jury also convicted the defendant of an age-dependent crime committed against the murder victim.” Harmless error may also be found as to that factor in cases where the defendant stipulated to the age of the victim, or where there is overwhelming evidence establishing the victim’s age. In other instances, the court will determine whether a remand for resentencing is required.

The Arizona Supreme Court rejected the State’s assertion that resentencing was never required in cases where one aggravating circumstance was either (1) not subject to Ring, (2) implicitly found by the jury, or (3) obviously established by the evidence beyond a reasonable doubt. It explained:

As the State contends, once the government establishes any aggravating factor, a defendant becomes “death eligible” in the strict sense, and establishing additional aggravating factors does not render a defendant “more” death eligible. In our view, however, Ring [] should not be read that narrowly. Although the Court there considered a death sentence based upon the existence of a single aggravating factor, we conclude that Ring [] requires a jury to consider all aggravating factors urged by the state and not either exempt from Ring [], implicit in the jury’s verdict, or otherwise established beyond a reasonable doubt.

The court found an additional reason to reject the State’s argument:

Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. . . . The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona’s capital sentencing scheme. We will not speculate about how the State’s proposal would impact this essential process.

As for cases where a defendant stipulated, confessed or admitted facts sufficient to establish an aggravating circumstance, the court will regard that factor as established. The harmless error inquiry will then focus on “whether no reasonable jury could find that the mitigation evidence adduced during the penalty phase is ‘sufficiently substantial to call for leniency.’ . . . Unless we conclude beyond a reasonable doubt that a jury would impose a death sentence, we must remand the case for resentencing.”

In the cases where the defendant simply failed to challenge the aggravating circumstance at the penalty phase, the state supreme court will determine whether the state met its burden of proving the factor’s existence beyond a reasonable doubt. If there is reasonable doubt about the existence of the factor, the court will consider remanding the case for resentencing.

In light of the death penalty standard in Arizona, the state supreme court held that even in cases where it concludes that no reasonable jury would have failed to find a charged aggravator proved beyond a reasonable doubt, it will uphold the death sentence only if it also finds, “beyond a reasonable doubt, that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency.”

The Arizona Supreme Court rejected the defendants’ argument that Enmund/Tison findings must now be made by a jury. This is because the Enmund/Tison finding does not concern an element of the offense, thereby implicating the Sixth Amendment. Instead, the Enmund/Tison finding relates to an Eighth Amendment proportionality analysis.

The Arizona Supreme Court also ruled: (1) resentencing under Arizona’s post-Ring death penalty statute would not constitute an ex post facto violation under either the Arizona or United States Constitution; (2) resentencing under Arizona’s post-Ring death penalty statute would not constitute a double jeopardy violation under either the Arizona or United States Constitution; and (3) if subsequent proceedings result in resentencing for life, those inmates who were originally sentenced prior to the 1993 addition of a natural life sentence must be sentenced in accordance with the prior 1993 sentence of life without possibility of parole for 25 years.

Applying the analysis set forth in State v. Ring, the Arizona Supreme Court vacated the death sentence and remanded for resentencing in State v. Pandeli, 65 P.3d 950 (Ariz. 2003). One of the two aggravators found by the trial court was unaffected by Ring v. Arizona because it involved a prior conviction. And, on the facts of the case, the State had a strong argument that no reasonable jury could have failed to find the second aggravator – the murder was committed in an especially heinous, cruel, or depraved manner. Resentencing was nevertheless required because the Arizona Supreme Court was unable to say, “beyond a reasonable doubt, that a reasonable jury hearing the same evidence as did the judge would have assessed the defense expert’s testimony as did the judge and would have failed to find mental impairment, a statutory mitigating circumstance. . . . A different finding of mitigating circumstances could affect the determination whether the mitigating circumstances are ‘sufficiently substantial to call for leniency.’”

In State v. Harrod, 65 P.3d 948 (Ariz. 2003), the Arizona Supreme Court vacated the death sentence and remanded for resentencing. The sole aggravator in the case was pecuniary gain. The Arizona Supreme Court was unable to find, beyond a reasonable doubt, that a reasonable jury hearing the same evidence as did the trial judge, would have reached the same conclusion as to the presence of the aggravator, or would have given the same weight to the mitigating factors.

Resentencing was also found required in State v. Hoskins, 65 P.3d 953 (Ariz. 2003). Hoskins was convicted by the jury of premeditated first degree murder, kidnapping, armed robbery, and theft. The trial judge determined that the murder was committed for pecuniary gain. On the record in this case, the Arizona Supreme Court could not find, beyond a reasonable doubt, that a jury would have come to that same conclusion. A jury could have arrived at different credibility determinations or interpretations of the circumstantial evidence than the trial judge did. Also, in regard to mental health evidence presented in mitigation, a reasonable jury might have assessed the defense expert’s testimony more favorably, and found the presence of a statutory mitigator, which could have impacted the determination of whether the mitigating circumstances were sufficiently substantial to warrant leniency.

Like in Harrod and Hoskins, the trial judge in State v. Finch, 68 P.3d 123 (Ariz. 2003), found the pecuniary gain aggravating circumstance. The judge also found an aggravating circumstance based on Finch’s prior convictions for serious offenses. This second aggravator was unaffected by Ring. As for the pecuniary gain aggravator, the Arizona Supreme Court found that no reasonable jury would have reached a different conclusion than the trial judge. This was because of Finch’s admission that he killed the victim in order to prevent him from telling anyone that a robbery was occurring. Looking to the evidence offered by Finch in mitigation, the court was unable to say that a reasonable jury would not have found mitigating circumstances in addition to the ones found by the trial judge, or weighed the circumstances differently, or reached a different conclusion as to whether the mitigating circumstances called for leniency. Therefore, resentencing was required under Ring.

Finch’s codefendant also received a reversal of his death sentence based on Ring. State v. Phillips, 67 P.3d 1228 (Ariz. 2003). Like in Finch’s case, an aggravator premised on prior convictions was found unaffected by Ring. Unlike in Finch’s case, however, the court was unable to conclude that a jury would be unreasonable to reject the pecuniary gain aggravator. This was because there was little evidence as to Phillips’ intent and motivation regarding the killing committed by Finch. Finally, the court made findings similar to the ones in Finch’s case about the potential for different conclusions about the mitigating evidence presented by Phillips if the case was heard by a jury.

Again, in State v. Lehr, 67 P.3d 703 (Ariz. 2003), resentencing was ordered in light of Ring v. Arizona. Lehr’s death sentence had previously been affirmed on direct appeal. However, because the mandate had not yet issued at the time Ring v. Arizona was decided, the case was reassessed. In its prior decision, the state supreme court had reversed two of three murder convictions due to a confrontation violation. It had also vacated one of the three aggravators. That left two aggravators, both of which involved prior convictions and were therefore outside the scope of Ring v. Arizona. That did not end the state court’s inquiry. It noted that some of the evidence presented by Lehr regarding non-statutory mitigation was either found by the trial court not to be mitigating, or not proved by a preponderance of the evidence. (The evidence at issue concerned the harm that would come to Lehr’s family should be receive a death sentence, and that he lacked childhood male role models.) The Arizona Supreme Court is unable to say “that no reasonable jury would not accept the non-statutory mitigating factors rejected by the trial judge, particularly in light of the single murder for which Lehr now stands convicted.” The court further observed that one of the prior conviction aggravators was now based on kidnapping and sexual assault, rather than prior homicides, given the state supreme court’s previous reversal of two murder convictions. A jury would therefore be likely to accord that aggravator less weight. Under the circumstances, finding the error to be harmless in this case “is too speculative.”

In State v. Tucker, 68 F.3d 110 (Ariz. 2003), Ring error required vacation of the death sentence. Tucker was convicted of three murders. The trial judge found three aggravating circumstances: (1) creation of grave risk of death to another person or persons; (2) the offense was committed in an especially heinous, cruel or depraved manner; and (3) conviction of multiple homicides which were committed during the commission of the offense. None of these factors fell outside the Ring mandate. The trial judge found the first aggravator based on Tucker killing all the members of the household and leaving one of the victim’s infant son alone in his crib with no means for caring for himself. On the record before it, the Arizona Supreme Court was unable to conclude beyond a reasonable doubt that any reasonable jury would have reached the same finding as the trial judge. The heinous, cruel and depraved aggravating circumstance was found applicable to each of the three killings. As for one of them, the Arizona Supreme Court concluded that no reasonable jury could have found the murder to be anything but especially cruel. It reached a different conclusion about the other two murders, however. It then concluded that no reasonable jury could have found differently than the trial judge in regard to the multiple murder aggravator. Turning next to mitigating circumstances, the Arizona Supreme Court was unable to say that a reasonable jury would have rejected, as did the trial judge, Tucker’s evidence about good character and rehabilitation potential which came from his mother. Although the trial judge implicitly found the mother unbelievable, the state supreme court found that “a jury could reach an opposite conclusion.” Given these findings, the court was unable to find the Ring error harmless.

California

In People v. Prieto, 66 P.3d 1123 (Cal. 2003), the California Supreme Court rejected an argument that Ring undermined the court’s previous rulings that: (1) the jury need not find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (2) the jury need not find each aggravating factor beyond a reasonable doubt; (3) juror unanimity on the aggravating factors is not necessary; and (4) written findings are not required. (Under California law, the narrowing is done at the guilt phase through "special circumstances." At the penalty phase, the jury considers and weighs aggravating and mitigating factors in determining the sentence to be imposed.)

Colorado

In response to Ring, Colorado Governor Bill Owens called the legislature into special session in order to amend the death penalty statute. On July 12, 2002, a new law went into effect which requires a unanimous jury to impose the death penalty. (7/14/02 Denv. Post B.01; 2002 WL 6571479.)

In Woldt v. People, 64 P.3d 256 (Colo. 2003), the Colorado Supreme Court "declare[d] Colorado's three-judge capital sentencing statute," which was in effect from 1995 through July 11, 2002, "to be unconstitutional on its face under Ring. The three-judge capital sentencing statute required the judges to make factual findings as a prerequisite to imposition of the death penalty, in violation of defendants' Sixth Amendment right to have a jury make such findings." The court further concluded that death row inmates George W. Woldt and Francisco Martinez, Jr. were entitled to be re-sentenced to life imprisonment without the possibility of parole under § 18-1-105(5)(mandatory life imprisonment if the death penalty in this section is declared unconstitutional). It explained:

Delaware

Delaware has amended its death penalty statute in order to ensure that the Delaware death penalty scheme complies with Ring v. Arizona. Under the new law, trial courts are barred from imposing a death sentence unless a jury first determines unanimously and beyond a reasonable doubt that at least one statutory aggravating factor exists. Once such a finding is made, the trial court retains the responsibility for determining the sentence to be imposed. See 11 Del.Code § 4209

In Brice v. State, 815 A.2d 314 (Del.2003), a case involving two men awaiting capital trials, the Delaware Supreme Court accepted four certified questions from the superior court on Ring-related issues. First, the court ruled that the 2002 death penalty statute is not ex post facto in nature because the changes are procedural in nature. Second, the court rejected the defendants’ argument that Ring requires a jury finding on any non-statutory aggravating factors later considered by the sentencing judge, stating:

Third, the court rejected the defendants’ contention that Ring requires that a jury must find beyond a reasonable doubt that all aggravating factors found to exist outweigh all mitigating factors found to exist. The court explained:

Fourth, the court found no constitutional impropriety in 11 Del.Code § 4209(e)(2), which provides: "In any case where the defendant has been convicted of murder in the first degree in violation of any provision of § 636(a)(2)-(7) of this title, that conviction shall establish the existence of a statutory aggravating circumstance and the jury, or judge where appropriate, shall be so instructed"

Finally, the court went on to address the question of whether the 1991 death penalty scheme, under which the jury performed a purely advisory function in the sentencing phase as to both the existence of aggravating factors and the weighing process, suffered from a structural defect. It concluded that it did not, and that harmless error analysis is appropriate. Further, the court found that the 2002 amendment "eliminates any arguable defect in the 1991 statute."

Florida

The Florida Supreme Court issued per curiam opinions in Bottoson v. Moore, 833 So.2d 693 (Fla. 2002), and King v. Moore, 831 So.2d 143 (Fla. 2002), rejecting claims by Bottoson and King that they were entitled to sentencing relief under Ring. The Florida Supreme Court relied upon past Supreme Court precedent upholding the Florida death penalty scheme. Although Bottoson and King argued that Ring created an irreconcilable conflict with aspects of that precedent, the Florida Supreme Court observed that this was not addressed by the United States Supreme Court in Ring. It then cited the following holding from Rodriquez De Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989):

Georgia

In Terrell v. State, 572 S.E.2d 595 (Ga. 2002), the Georgia Supreme Court ruled that Ring did not create a constitutional obligation to place statutory aggravators in the indictment. 

Idaho

In Idaho, the state supreme court vacated the death sentence of Donald Fetterly and remanded for resentencing in light of Ring. State v. Fetterly, 52 P.3d 874 (Idaho 2002) .

Idaho Governor Kempthorne recently signed legislation designed to conform Idaho's death penalty law to the requirements of Ring v. Arizona. How many of Idaho's 21 death row inmates will have to be resentenced under the new law has yet to be determined. Under the new law, the responsibility for imposing a death sentence is shifted from judges to juries. The statute also sets up a procedure for resentencing Idaho's existing death row inmates should their sentences be nullified because juries were not involved in their sentencing.

Indiana

The Indiana Supreme Court recently reversed a life without parole sentence due to a violation of Apprendi/Ring. Bostick v. State, 773 N.E.2d 266 (Ind. 2002). After the jury was unable to reach a unanimous sentencing recommendation, the trial judge found certain aggravating factors true and imposed an enhanced sentence.

In Wrinkles v. State, 776 N.E.2d 905 (Ind. 2002), the Indiana Supreme Court declined to decide whether Ring applies retroactively to cases on collateral review, or whether some aspects of Indiana’s hybrid sentencing scheme might be impacted by Ring. Instead, the court rejected Wrinkle’s Ring claim on the ground that the decision was not implicated in his case. The aggravating factor that rendered Wrinkles eligible for the death penalty was multiple murder. Wrinkles argued Ring was violated because there was no special verdict establishing that this had been found applicable by the jury beyond a reasonable doubt. The court pointed out, however, that "[t]he jury's verdict in the guilt phase, finding petitioner guilty of the three murders, necessarily means that the jury found, beyond a reasonable doubt, that petitioner had committed more than one murder." Further, "the jury was instructed that before it could recommend that a death sentence be imposed, the jury must find the existence of the charged aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance outweighed the mitigating circumstances." In this case, the jury unanimously recommended a sentence of death. "Therefore, the jury necessarily determined the fact of the multiple-murder aggravating circumstance beyond a reasonable doubt."

On June 27, 2003, Marion County Superior Court Judge Grant Hawkins ruled that Indiana's death penalty statute is unconstitutional under Ring because it permits judges to impose a sentence of death when the jury is unable to decide on the sentence. While other superior court judges have devised alternative procedures in an attempt to comply with Ring, Judge Hawkins refused to rewrite state law and dismissed the death penalty as to Charles E. Barker and Chijoike Bomani Ben-Yisrayl.

Louisiana

In State v. Clark, ___ So.2d ___, 2003 WL 21480365 (La. June 27, 2003), the Louisiana Supreme Court rejected an argument that Ring v. Arizona prohibited it from upholding a death sentence after ruling that one or more of the aggravating circumstances found by the jury was invalid. Under Zant v. Stephens, 462 U.S. 862 (1983), an appellate court in a non-weighing state like Louisiana is not required to set aside a death sentence that is supported by a valid aggravator merely because another aggravating circumstance is found insufficient by itself to support the death penalty. In the view of the Louisiana Supreme Court, "Ring does not supplant the Supreme Court's decision in Zant."

Maryland

The Maryland Court of Appeal, in a 5-2 vote, stayed the March 17, 2003 execution date of Steven Howard Oken in order to address his argument that the standard of proof – preponderance of the evidence - regarding the weighing of aggravating and mitigating circumstances is too low under Ring v. Arizona.

Missouri

The Missouri Supreme Court ruled in State v. Whitfield, ___ S.W.3d ___, 2003 WL 21386284 (Mo. June 17, 2003), that Ring v. Arizona applies to steps one through three of its sentencing procedure, found in Section 565.030.4 . In step one, the trier of fact finds the presence of one or more statutory aggravating factors. In step two, the trier of fact is required to find that the evidence in aggravation, including but not limited to evidence supporting the statutory aggravating factors, warrants imposition of the death penalty. The Missouri Supreme Court rejected the State’s contention that this step merely calls for a subjective opinion rather than a finding of fact. Similarly, the state supreme court concluded that Ring was implicated in step three, where the trier of fact is required to determine whether the evidence in mitigation outweighs the evidence in aggravation found in steps 1 and 2. Notably, if the answer is yes, then the defendant is no longer eligible for the death penalty. In support of its interpretation of Ring, the Missouri Supreme Court cited Woldt v. People, 64 P.3d 256 (Colo.2003), Johnson v. State, 59 P.3d 450 (Nev.2002), and State v. Ring, 65 P.3d 915 (Ariz.2003). It is not until step four, where the fact-finder is required to decide under all of the circumstances whether to return a sentence of life imprisonment rather than death, that a discretionary determination is made that falls outside Ring.

Turning to Whitfield’s case, where the trial judge made the findings under steps one through four after the jury deadlocked 11-1 in favor of life imprisonment, the Missouri Supreme Court found a clear violation of Ring. It then turned to harmless error analysis. As for step one, no Ring violation had actually occurred in this case because the statutory aggravators submitted by the prosecution were prior convictions. "Ring and Apprendi do not overrule prior Supreme Court case law holding that the presence of prior convictions, which are a matter of court record, may be found by the judge rather than by the jury without violating the Sixth and Fourteenth Amendments." As for step two, the jury had been instructed that a life verdict was required if the jurors could not unanimously agree beyond a reasonable doubt that the aggravators were sufficient to warrant a death sentence. Given the jury’s eventual 11-1 deadlock, the State argued that the jury had to be presumed to have made a finding in step two that a death sentence was warranted by the aggravating circumstances. The Missouri Supreme Court ruled, however, that such a presumption was inadequate to meet the State’s burden under Chapman of proving the error harmless beyond a reasonable doubt. Even assuming such a presumption would suffice, no similar presumption could be made regarding step 3. In that step, the jury was not informed that a life verdict was required if it did not unanimously agree whether mitigating circumstances outweighed the aggravating factors. Thus, the record did not establish that the deadlock occurred after step 3. In sum, the Missouri Supreme Court held:

Next, the state supreme court addressed the State’s contention that Ring could not be applied to Whitfield’s case because his appeal was final at the time of the Supreme Court’s decision in Ring. In determining whether the mandate should be recalled, the Missouri Supreme Court chose to apply the retroactively test of Linkletter v. Walker, 381 U.S. 618 (1965), and Stovall v. Denno, 388 U.S. 293 (1967), rather than that of Teague v. Lane, 489 U.S. 288 (1989), and ruled the Ring would be applied retroactively to those few cases where a judge made the requisite sentencing findings after a jury deadlock.

As for the proper remedy in case, the Missouri Supreme Court concluded it was to resentence Whitfield to life imprisonment.

In State v. Gilbert, 103 S.W.3d 743 (Mo.2003), the Missouri Supreme Court rejected the argument that Ring requires that aggravating circumstances be listed in the information or indictment.

In State v. Williams, 97 S.W.3d 462 (Mo. 2003), the Missouri Supreme Court rejected an argument that Ring was violated where the judge, rather than the jury, determined that prior convictions constituted serious assaultive behavior, which made them possible aggravating factors. Ring was not implicated, according to the court, because the jury made the determination of whether the defendant had in fact been convicted of those crimes, thus rendering the convictions aggravating factors.

Nebraska

Following Ring, Nebraska enacted a new sentencing procedure under which juries will determine whether aggravating factors are present. A three-judge panel will then pass sentence. The law is retroactive.

In State v. Gales, 658 N.W.2d 604 (Neb. 2003), a case tried under the pre-Ring statute which did not require jury findings on the existence of aggravating circumstances, the Nebraska Supreme Court ruled that the death sentence had to be reversed. Under state law, it is aggravating circumstances that create eligibility for the death penalty. Thus, the absence of an "explicit determination [by the jury] that any of the statutory aggravating circumstances existed in this case . . . violated the constitutional principle articulated in Ring . . ..."

The procedures under which Gales was sentenced to death required the judge to base the sentence imposed on three considerations: (1) Whether sufficient aggravating circumstances exist to justify imposition of a sentence of death; (2) Whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances; or (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The Nebraska Supreme Court rejected Gales’ argument that Ring also required submission of each of these three considerations to the jury. Instead, the court "interpret[ed] Ring as affecting only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based."

The Nebraska Supreme Court further ruled that Gales could be resentenced under the post-Ring statute, and that the new statute was not unconstitutional for failing to require jury findings on sentencing considerations.

In State v. Lotter, 664 N.W.2d 892 (Neb. 2003), the Nebraska Supreme Court affirmed the denial of post-conviction relief, holding that "Ring does not apply to collateral challenges to sentences which were final when Ring was decided."

Nevada

In Johnson v. State, 59 P.3d 450 (Nev. 2002), the Nevada Supreme Court found a Sixth Amendment violation under Ring where a three-judge panel determined the presence of aggravating circumstances and imposed the death penalty after the jury was unable to agree on the defendant’s sentence. In so ruling, the court concluded that there are two distinct findings that must be made to render a defendant death eligible in Nevada. First, an aggravating circumstance must be found to exist. Second, the sentencer must conclude "that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found." The Nevada Supreme Court determined that this latter finding "is in part a factual determination, not merely discretionary weighing." Thus, while the United States Supreme Court in Ring "expressly abstained from ruling on any ‘Sixth Amendment claim with respect to mitigating circumstances,’" the Nevada Supreme Court reads Ring to require that a jury make this second finding as well. Because the court was unable to find the Sixth Amendment violation harmless beyond a reasonable doubt, the death sentence was vacated and the case remanded for resentencing before a jury.

In Colwell v. State, 59 P.3d 463 (Nev. 2002), the Nevada Supreme Court declined to apply Ring retroactively to cases on collateral review. In so ruling, it applied a modified and slightly more prisoner-friendly version of Teague. The state court first found that Ring’s rule was "new" even though the decision concerned the application of prior case law to closely analogous facts. This was because the United States Supreme Court had to deal with conflicting prior authority and expressly overrule precedent in announcing its decision. Since Colwell’s conviction was final prior to Ring, he could only receive the benefit of Ring if the case met one of the exceptions to the anti-retroactivity rule: (1) the case announced a rule establishing that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense; or (2) the case announced a rule establishing a procedure without which the likelihood of an accurate conviction is seriously diminished. The court found that neither exception applied. In the alternative, the court ruled that Ring did not apply to Colwell’s case in light of his guilty plea and waiver of a jury trial.

On June 9, 2003, Nevada’s governor signed into law AB 13, which eliminates the 3-judge panels which previously determined sentence when a capital jury was unable to decide on punishment. 

North Carolina

In State v. Hunt, 582 S.E.2d 593 (N.C. 2003), the North Carolina Supreme Court ruled that Ring does not require that aggravating circumstances be alleged in state-court indictments.

Oregon

In State v. Oatney, 66 P.3d 475 (Or. 2003), the Oregon Supreme Court rejected the argument that "deliberateness" was an element of capital aggravated murder that had to be charged in the indictment. (Under Oregon law, "deliberateness" is one of the findings the sentencer must make in order to impose a death sentence.)

Tennessee

In State v. Berry, ___ S.W.2d ___, 2003 WL 1855099 (Tenn.Crim.App. Apr. 10, 2003), the Tennessee Court of Criminal Appeals rejected the argument that the defendant’s death sentence was invalid because the aggravating circumstances relied upon by the prosecution to secure the death penalty were not charged in the indictment.

Mental Retardation 

On June 20, 2002, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. ___, 122 S.Ct. 2242 (2002), that execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the Constitution. Click here for a summary of this landmark decision. In so ruling, the Supreme Court left it up to the States to develop the appropriate means for enforcing the constitutional restriction it announced.

A summary of cases and legislation resulting from the Atkins decision is posted on the secure portion of the Habeas Assistance and Training website in the section on Mental Retardation Materials.