The U.S. Supreme Court ruled more than a year ago that convicted murderers can only be sentenced by juries, rather than judges, but was silent on whether that ruling applied retroactively to those death-row inmates who had already exhausted their appeals.

That silence has set up conflicting opinions in the 9th Circuit Court of Appeals and three other federal court districts that can only be resolved in the U.S. Supreme Court, Assistant Arizona Attorney John Todd said Sept. 2.

Earlier that day, the 9th Circuit Court of Appeals in San Francisco issued an 8-3 ruling stating that anyone now on death row who had been sentenced by a judge had the right to be sentenced by a jury, a decision that effectively vacated the death sentences of 88 Arizona inmates and about a dozen others in Idaho and Montana.

That ruling came on appeals from inmates who had already exhausted appeals of their death sentences, including 10 in Arizona whose death sentences by judges were pending appeal at the time of the U.S. Supreme Court’s decision in Ring v. Arizona in June 2002.

The guilt of the death row inmates is not at issue. Rather, the latest opinion from the circuit court grew in part out of recent decisions handed down by the Arizona Supreme Court, which decided that Ring v. Arizona amounted to a “procedural change” in the judicial process, rather than a “substantive change.” A substantive change would require that anyone sentenced to die by a judge was entitled to a new sentencing by a jury, while a procedural change would not.

Either way, the state of Arizona considers the 88 inmates who are affected by the 9th Circuit ruling to still be on death row.

“The Arizona Supreme Court has concluded that the Ring decision should not be applied retroactively,” Mr. Todd said. “Where there’s a conflict, until the U.S. Supreme Court resolves that conflict, the Arizona Supreme Court will follow Arizona law. And Arizona law is that Ring is not retroactive.”

Arizona Attorney General Terry Goddard announced at a news conference several hours after the Sept. 2 release of the 9th Circuit ruling, Summerlin v. Stewart, that the state will ask the U.S. Supreme Court to review that decision, which runs counter to the ruling of three other courts, including an opinion from the 11th Circuit that stated Ring should not be applied retroactively.

If the U.S. Supreme Court declines to hear the case, or does so and rules against Arizona, the 88 inmates who are affected would have to face new sentencing, but they would not have to be retried to determine their guilt or innocence, Mr. Goddard said.

Resentencing Difficulties

Resentencing would be difficult and costly, but not impossible, said Kent Cattani, the capital crimes section chief for the Attorney General’s Office. Reconvening the original juries and assembling witnesses from the trials would not be necessary nor even possible, since some cases go back more than 20 years and some jurors and witnesses have died, Mr. Cattani said. Instead, testimony from the original sentencing hearings could be read to newly assembled juries, he said.

Mr. Goddard couldn’t put a price tag on what resentencing might cost, but said it could “easily run into the millions of dollars.” He said prosecutors would be stretched for time as well if 88 “sentencings were suddenly dumped into the system.”

Ken Murray, a Phoenix public defender who represents death row inmates in federal appeals, hailed the Sept. 2 ruling from the 9th Circuit Court as “fundamental justice.”

Eric Larsen, a Tucson lawyer who has defended about a dozen clients on murder charges, said, “When you’re talking life and death, every opportunity should be afforded to the accused. Everyone who was judged by the old law ought to have the same opportunity [to be sentenced by a jury], especially when it’s for these kind of stakes.”

House Speaker Pro Tempore Bob Robson, R-Dist. 20, said: “I am very concerned about the effect this ruling will have on the victims. Victims of violent crime deserve closure and this decision will only re-open the wounds for many of the friends and families.”

Rep. Steve Yarbrough, R-Dist. 21, said, “the prospect that the families of victims would have to revisit these issues for resentencing is cruel and certainly punishment for them.”

Senate Judiciary Chairman Jim Weiers, R-Dist. 10, said of the ruling: “It’s wrong. The 9th Circuit has been overturned more than any other court, and I won’t be surprised if it’s overturned by the U.S. Supreme Court.” —

Staff writer Phil Riske contributed to this story.