# Warren Wesley Summerlin v. Terry L. Stewart, Director of Arizona Department of Corrections

> Court of Appeals for the Ninth Circuit · September 2, 2003 · 341 F.3d 1082

URL: https://www.frixlaw.com/law-library/cases/9496370

## Case

- **Full name:** Warren Wesley SUMMERLIN, Petitioner-Appellant, v. Terry L. STEWART, Director of Arizona Department of Corrections, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 2, 2003
- **Citations:** 341 F.3d 1082; 2003 Daily Journal DAR 9927; 2003 Cal. Daily Op. Serv. 8013; 2003 U.S. App. LEXIS 18111; 2003 WL 22038399
- **Precedential status:** Published
- **Opinion:** Concurrence by Reinhardt
- **Judges:** Schroeder, Pregerson, Reinhardt, O'Scannlain, Hawkins, Thomas, McKeown, Wardlaw, Fisher, Tallman, Rawlinson
- **Cited by:** 73 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Schriro v. Summerlin, 542 U.S. 348 (2004).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496370

## How later opinions describe it (automated extraction)

- stating that "We do not execute people according to ordinary legal principles that may be good enough for our more routine decisions. When the state assumes the role of the Deity, it must exercise greater care."
- concluding that the holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), was “substantive” for Teague purposes because it “effected a redefinition of Arizona capital murder law”
- noting in dicta that, in Buckland, the court “concluded that Apprendi did not alter, restructure, or redefine as a matter of New Jersey law the substantive elements of the underlying offense there at issue, nor did it create or resurrect a separate substantive offense ... [and…
- stating that "[t]here was no doubt, importantly, that Furman had retroactive effect"
- holding that Ring does apply retroactively

## Opinion text

REINHARDT, Circuit Judge,
concurring.
I join fully in Judge Thomas’s excellent opinion for the court. I could not improve on the legal arguments he has offered. I agree entirely that Ring establishes a new substantive rule and that to the extent the rule is procedural it constitutes a watershed rule that enhances the accuracy of capital sentencing and alters our understanding of a bedrock procedural provision.
I write separately only to emphasize that a contrary result would be unthinkable in a society that considers itself both decent and rational. Few seriously doubt that the death penalty is generally imposed in an arbitrary manner in this nation. The vagaries of the process by which prosecutors select those they believe worthy of death; the chances that defendants will be assigned incompetent rather than competent legal counsel, and that such representation will continue throughout the state and federal direct and collateral proceedings; the fortuitous circumstances which in combination account for the fact-finders’ decisions in capital proceedings as to who shall live or die: all result in a system of execution by chance or fate. And this is wholly aside from factors such as race, IQ, poverty, wealth, geography, and sex, each of which plays a significant part in the business of determining which persons the state decides to execute.
But surely there is a limit to arbitrariness — even to arbitrariness in the imposition of the death penalty. And executing people because their cases came too early — because their appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions regarding life and death in capital cases — is surely arbitrariness that surpasses all bounds.
It is not uncommon for the Supreme Court to make significant errors in interpreting the constitution, see, e.g., Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896); Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986); Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), and to correct those errors when it recognizes its mistakes, see, e.g., Brown v. Bd. of Educ., 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954); Lawrence v. Texas, — U.S. -, 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003); Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). The Court is to be commended for the integrity it displays in acknowledging its failures in such cases. Ordinarily, the consequences are that the judicial reversal is greeted with relief and the error has no further adverse effects. Certainly, all must agree that constitutional errors made by the Court should not have any greater adverse consequences than necessary. Here, however, in the dissent’s view, additional people should now be put to death following unconstitutional proceedings even though the Court has recognized the unconstitutionality inherent in those future executions, and even though had the Court not erred initially, the death sentences in question would previously have been set aside. To me, this represents a seriously warped view of the nature of our legal system, and the relationship of that system to its ultimate objective: justice.
The dissent expresses a peculiar lack of confidence in juries, and states that the “conscience of the community is not necessarily the fairest adjudication for a capital *1123 defendant” because considerations of race and other biases influence jurors’ actions. Our recent experience shows precisely the opposite. When the Attorney General decided to order federal death penalty prosecutions in a far wider range of cases and places than ever before, juries responded by expressing the “conscience of the community.” Since General Ashcroft has launched his expanded federal death penalty campaign, sometimes over the objections of local federal prosecutors, juries have returned 21 verdicts. In 20 of them they have voted for life rather than death. 1 Despite those who distrust it, the “conscience of the community” is indeed, a fair, democratic, and unbiased expression of societal values. To distrust juries is plainly to distrust democracy.
But even more important, my dissenting colleagues believe that it is perfectly proper for the state to execute individuals who were deprived of their constitutional right to have a jury make their death penalty decisions, if the judicial machinery had brought the direct appeal portion of their legal proceedings to an end before the day on which the Supreme Court recognized its constitutional error. In other words, my colleagues believe that those who had reached the stage of habeas proceedings as of the day of the Court’s belated enlightenment may be executed, but those who were still awaiting a final answer to their appeals may not.
Wholly aside from the fact that the majority is unquestionably correct with respect to its careful analysis of retroactivity law, I remind my dissenting colleagues that “death is different.” Ring v. Arizona, 536 U.S. 584, 606 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002); Ford v. Wainwright, 477 U.S. 399, 411 , 106 S.Ct. 2595 , 91 L.Ed.2d 335 (1986) (plurality opinion) (“This especial concern [for reliability in capital proceedings] is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different”); Gardner v. Florida, 430 U.S. 349, 357 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 289 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (“The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.”). We do not execute people according to ordinary legal principles that may be good enough for our more routine decisions. When the state assumes the role of the Deity, it must exercise greater care. Thus, even if the dissenting argument were more closely attuned to traditional retroactivity law — even if that law demanded a different result in run-of-the-mill cases — I would not apply those rules here. In order to understand why, we need only look to the facts revealing the inherent fallibility of our criminal justice system.
This country imposed approximately 5,760 death sentences between 1973 and 1995. 2 During that time, “courts found serous, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.” 3 State courts reviewed 4,578 of those cases and reversed 41% for serious error on direct appeal; another 10% were reversed on state collateral review. 4 Fed *1124 eral courts found error in 40% of the 599 cases which state courts affirmed. 82% of defendants who received a second trial after a successful state collateral petition did not receive a death sentence; 7% of those defendants were found innocent or had their charges dropped. Recently in Illinois, a conservative Governor declared a moratorium on executions after discovering that since the death penalty was reinstated, more individuals convicted of capital crimes and sent to death row had been exonerated than executed. Following a full investigation, he pardoned some of the prisoners on death row and commuted the sentences of.the rest. 5 Since 1973, one hundred and eight people nationwide have been released from death row upon evidence of their innocence; there is no comparable statistic yet available for those who have been executed. 6 It is virtually certain that other people who are actually innocent-much less those convicted in violation of the Constitution-currently await execution.
Let me put the abstract problem of the retroactivity of Ring in perspective, and let me state it as clearly as possible. In Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), Jeffrey Alan Walton tried to persuade the then-members of the Supreme Court that a jury, not a judge, must make the critical factual decisions regarding his ultimate fate. In rejecting his argument, the Court erred, as it now concedes. In Walton , the Court mistakenly decided that the Constitution did not entitle capital defendants to a jury trial at the penalty phase. All death row prisoners who advanced the constitutional argument that Walton had unsuccessfully asserted subsequently received the same answer that he did. Some capital defendants continued to assert the claim, hoping that the Court would change its mind. Others believed that it would be futile to continue to make an argument that the Court had just rejected. As a result of the Court’s error, some of these individuals have already been executed in violation of their constitutional rights. Others are still awaiting execution. The question before us is: may the state now execute those persons as to whom the Supreme Court ruled erroneously (directly or indirectly) with respect to their constitutional claims, although it is prevented from executing those as to whom the Court had not yet formally erred? May the state execute the “Jeffrey Alan Waltons” who are now on death row — the prisoners who previously correctly argued (or were incorrectly deterred from arguing) that their executions would be unconstitutional, the prisoners whose causes were erroneously turned down by the Supreme Court — the prisoners who were right about the Constitution when the Supreme Court was wrong?
To put it differently, may the state now deliberately execute persons knowing that their death sentences were arrived at in a manner that violated their constitutional rights? Is it possible that prisoners will now be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late — on a wholly arbitrary date, rather than when it should have? Will we add to all of the other arbitrariness infecting our administration of the death penalty the pure fortu *1125 ity of when the Supreme Court recognized its own critical error with respect to the meaning of the Constitution? Can we justify executing those whose legal efforts had reached a certain point in our imperfect legal process on the day the Supreme Court changed its mind, while invalidating the death sentences of those whose cases were waiting slightly further down the line?
I do not think it rational for a society to make its decisions regarding whom it will kill in the manner that my dissenting colleagues suggest. A state’s decision to take the life of a human being, if it can be justified at all, must rest on a far less arbitrary foundation. And if our society truly honors its constitutional values, it will not tolerate the execution by the state of individuals whose capital sentences were imposed in violation of their constitutional rights. It should not take a constitutional scholar to comprehend that point.
RAWLINSON, Circuit Judge,
with whom O’SCANNLAIN and TALLMAN, Circuit Judges, join, dissenting.
I must respectfully dissent from that portion of the majority opinion discussing the retroactive application of Ring v. Arizona. The majority opinion negates the presumption against retroactive application of a new rule articulated in Teague v. Lane, 489 U.S. 288, 304, 310 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). The underpinning of the majority opinion is an assumption that the Supreme Court’s ruling in Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), represents a new substantive rule or, alternatively, a new procedural rule that seriously enhances accuracy of capital sentencing proceedings, and alters our understanding of “bedrock procedural elements essential to the fairness of the proceeding.” Maj. Op. at 1109 (citing Sawyer v. Smith, 497 U.S. 227, 242 , 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990)).
I. The Ring Decision Announces A Procedural Rule Rather Than A Substantive One.
A. Ring’s Reliance upon and Similarity to Apprendi
In my view, the majority opinion wanders afield in the first instance by holding that Ring contains a new substantive rule despite the teaching of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), upon which the Supreme Court expressly relied in deciding Ring. See Ring v. Arizona, 536 U.S. at 602 , 122 S.Ct. 2428 .
In Apprendi , the defendant pled guilty to two counts of second-degree possession of a firearm and one count of unlawful possession of a bomb. 530 U.S. at 469-70 , 120 S.Ct. 2348 . After accepting Appren-di’s guilty plea, the trial court conducted a hearing and concluded that Apprendi’s firing of several bullets into the home of an African American family was “motivated by racial bias.” Id. at 470-71 , 120 S.Ct. 2348 . This conclusion resulted in a “hate crime enhancement,” doubling the maximum potential sentence. Id. Apprendi was sentenced to a twelve-year term of imprisonment, two years more than the ten-year maximum for the firearms offense. Id. at 474 , 120 S.Ct. 2348 .
The Supreme Court recognized that the constitutional guarantees embedded in the Sixth Amendment and the Fourteenth Amendment were at stake. Id. at 476-77 , 120 S.Ct. 2348 . In keeping with those guarantees, the Court rendered the ruling that resonated throughout the country: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and *1126 proved beyond a reasonable doubt.” Id. at 490 , 120 S.Ct. 2348 .
In Ring v. Arizona, quoting extensively from Apprendi , the Supreme Court addressed the Sixth Amendment right to a jury trial in the context of capital sentencing. 536 U.S. at 602-03 , 122 S.Ct. 2428 .
The Supreme Court described its holding in Apprendi as a determination “that Apprendi’s sentence violated his right to a jury determination that he is guilty of every element of the crime with which he is charged beyond a reasonable doubt. That right attached not only to Apprendi’s weapons offense but also to the hate crime aggravating circumstance.” Id. at 602 , 122 S.Ct. 2428 (citation, internal quotation marks and alteration omitted).
In overruling Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), the Supreme Court in Ring noted that, as with the “hate crime” aggravator in Apprendi , “Arizona’s enumerated aggravated factors [necessary for imposition of the death penalty] operate as the functional equivalent of an element of a greater offense .... Ring, 536 U.S. at 609 , 122 S.Ct. 2428 (citation and internal quotation marks omitted).
The Supreme Court quoted Justice Thomas’s concurring opinion in Apprendi in recognizing that:
if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact, the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.
536 U.S. at 605 , 122 S.Ct. 2428 (citation, internal quotation marks and alterations omitted) (emphasis added).
This conclusion of the Ring court is pivotal because it is the unlikely linchpin of the majority’s conclusion that the Supreme Court’s holding in Ring is a rule of substance rather than procedure for purposes of the Teague retroactivity analysis.
The majority opinion urges us to accept the following syllogism:
• Creation of a separate substantive criminal offense renders a new rule one of substance rather than procedure for purposes of the Teague analysis. Maj. Op. at 1105-06.
• Ring’s holding requiring that a jury determine the existence of aggravating factors necessary for imposition of the death penalty, creates a distinct offense of capital murder. Maj. Op. at 1104-05.
• Ring’s ruling is one of substance rather than procedure for purposes of the Teague retroactivity analysis. Maj. Op. at 1106-07.
At first glance, the majority opinion’s reasoning exudes considerable appeal. However, closer examination of the first point of the syllogism tarnishes the initial appeal of the majority’s logic. Why? Because merely saying that creation of a separate substantive criminal offense renders a rule one of substance rather than procedure does not make it so. If that were true, Apprendi would have been a substantive rather than a procedural ruling. As the Supreme Court noted in Ring , the “hate crime” aggravator in Apprendi operated in the same manner as the death penalty factors in Walton to establish a “greater offense.” 536 U.S. at 609 , 122 S.Ct. 2428 .
The linkage in Ring of the Walton death penalty factors and the Apprendi hate crime aggravator is fatal to the majority’s syllogism. The majority opinion acknowledges, as it must, our recent holding that Apprendi may not be applied retroactively on habeas review. See United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir.2002). Maj. Op. at 1121. The majority makes the following four points in an *1127 attempt to distance itself from our holding in Sanchez-Cervantes :
1. The decision in Apprendi clearly was not one of substantive law. Maj. Op. at 1280. 1
Counterpoint: It is equally clear that Ring is not a decision of substantive law. As the United States Supreme Court noted in Ring , the aggravator. in Apprendi operated in the same fashion as the aggra-vators in Walton to establish a separate offense. See Ring, 586 U.S. at 609, 122 S.Ct. 2428 . That similarity is more telling than whether or not the statute in question is declared unconstitutional.
2. Apprendi violations are subject to harmless error analysis. Maj. Op. at 1280.
Counterpoint: The Supreme Court in Ring strongly implied, if not outright held, that harmless error analysis is equally applicable to any imposition of the death penalty by a judge rather than a jury. See 536 U.S. at 609 , 122 S.Ct. 2428 n. 7 (citing Neder v. United States, 527 U.S. 1, 25 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999)) (“this Court ordinarily leaves it to lower courts to pass on the harmlessness of the error in the first instance”); see also id. at 621 , 122 S.Ct. 2428 (O’Connor, J., dissenting) (“I believe many of these [Ring ] challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless or plain error review, or because, having completed their direct appeals they will be barred [by Teague ] from taking advantage of today’s holding on collateral review.”) (citations omitted).
3. Apprendi was not a watershed rule of procedural law. Maj. Op. at 1280.
Counterpoint: Neither is Ring a watershed rule of procedural law. For the reasons discussed in section II below, the rule pronounced in Ring would not greatly enhance the accuracy of sentencing proceedings, and would affect only a limited number of cases.
4. Capital cases are structurally different. Maj. Op. at 1280.
Counterpoint: The existence of a capital murder offense does not per se establish the substantive nature of the Ring ruling. In fact, the Supreme Court recognized in Ring that even before the adoption of the Bill of Rights, juries were determining which homicide defendants would be subject to capital punishment. 536 U.S. at 599 , 122 S.Ct. 2428 (quoting Walton v. Ariz., 497 U.S. 639, 711 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 , Stevens, J., dissenting). A return to that well-established tradition does not lead to the ineluctable conclusion that a substantive rule of law has been established.
Proper application of the holdings in Ring and Apprendi leads to the opposite conclusion than that reached in the majority opinion: Ring did not create a new substantive rule.
B. The Arizona Supreme Court’s Ring Analysis
The majority opinion recognizes that the Arizona Supreme Court has reached the opposite conclusion, namely that Ring did not create a new substantive rule. Maj. Op. at 1106-07. The majority opinion justifies its disregard of the Arizona Supreme Court’s holding by stating that “[bjecause *1128 the decisions in [State v.] Towery [ 204 Ariz. 386 , 64 P.3d 828 (Ariz.2003),] and [State v.] Ring [ 204 Ariz. 534 , 65 P.3d 915 (Ariz.2003) ] rest on federal law, and not state law, they do not bind us.” Maj. Op. at 1106-07. However, the Supreme Court suggested otherwise in Ring , ruling that “the Arizona court’s construction of the State’s own law is authoritative[.]” 536 U.S. at 603 , 122 S.Ct. 2428 (citation omitted). The Supreme Court was addressing “the Apprendi majority’s portrayal of Arizona’s capital sentencing law.” Id. Similarly, in this case we are addressing the Ring majority’s portrayal of Arizona’s capital sentencing law, with the Arizona Supreme Court’s construction carrying the same authority. See id.
In Towery, the Arizona Supreme Court examined Arizona’s capital sentencing scheme in light of the Ring decision. The Arizona Supreme Court, with its presumably authoritative grasp of Arizona’s statutory scheme, declared 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 [ ] altered who decides whether any aggravating circumstances exist, thereby altering the fact-finding procedures used in capital sentencing hearings.”
64 P.3d at 833 (emphasis in the original).
In short, Ring changed the “who” of the capital sentencing determination, not the “what.” A change in who determines the existence of the aggravating factors is quintessentially procedural. See Sanchez-Cervantes, 282 F.3d at 668 .
The decision of the Arizona Supreme Court in Towery is consistent with the United States Supreme Court’s explanation of Apprendi in Ring and our Teague analysis of Apprendi in Sanchez-Cervantes .
C. Our Sister Circuits’ Ring Analysis
The Tenth and Eleventh Circuit Courts of Appeal have both addressed and rejected retroactive application of Ring .
The Tenth Circuit court matter-of-factly concluded that Ring “is simply an extension of Apprendi to the death penalty context. Accordingly, this court’s recent conclusion ... that Apprendi announced a rule of criminal procedure forecloses [the] argument that Ring announced a substantive rule.” Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir.2002) (citation omitted).
Likewise, our recent ruling in Sanchez-Cervantes that Apprendi pronounced a new rule of criminal procedure, 282 F.3d at 668 , forecloses the majority’s conclusion that Ring pronounced a new substantive rule. As our colleague recently observed when discussing our holding in Sanchez-Cervantes :
We arrived at this conclusion even though every application of the constitutional rule [announced in Apprendi ] requires distinguishing between the statute’s ‘elements’ and ‘sentencing factors’ and even though it’s almost certain, as a simple matter of mathematical probability, that some defendants would not have been convicted had the statutory elements been submitted to a jury of twelve, instead of decided by a judge alone. There may well be a plausible argument that, because Apprendi narrows the class of persons who is likely to be convicted, the rule is substantive. But we have already rejected this argument. Instead, we characterized the rule as procedural because Apprendi affects only the identity of the decision-maker and the burden of proof....
*1129 United States v. Montalvo, 331 F.3d 1052, 1061 (9th Cir.2003) (Kozinski, J., concurring).
The Eleventh Circuit case, Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003), contains a more expansive discussion of the Ring retroactivity issue. The court, as did the court in the Tenth Circuit, linked its characterization of Ring as a procedural rule to Ring’s “status as an extension of Apprendi.” Id. at *35, 1284. The court concluded that “because Apprendi was a procedural rule, it axiomatically follows that Ring is also a procedural rule.” Id. at *34,1284.
The analysis in Turner is remarkably similar to Judge Kozinski’s concurring opinion in Montalvo , discussing our holding in Sanchez-Cervantes. See 331 F.3d at 1061 .
The Eleventh Circuit court reasoned:
Just as Apprendi constitutes a procedural rule because it dictates what fact-finding procedure must be employed, Ring constitutes a procedural rule because it dictates what fact-finding procedure must be employed in a capital sentencing hearing. Ring changed neither the underlying conduct the state must prove to establish a defendant’s crime warrants death nor the state’s burden of proof. Ring ... altered only who decides whether any aggravating circumstances exist and, thus, altered only the fact-finding procedure.
Turner, 339 F.3d at 1284 , 2003 WL 21739734 at *34 (internal quotation marks and citations omitted) (emphasis in the original).
II Ring’s Procedural Rule Does Not Fit Within Any Exception to Teague’s Retroactivity Prohibition.
The majority opinion’s alternative holding is that even if Ring announced a procedural rule, it nonetheless fits within an exception to the Teague retroactivity prohibition. Maj. Op. at 1108.
I disagree with the majority’s conclusion that Ring is a new procedural rule that seriously enhances the accuracy of capital sentencing proceedings and alters our understanding of bedrock procedural principles. Maj. Op. at 1116.
A. Serious Enhancement of the Proceedings’Accuracy
The majority opinion makes its case for accuracy by attacking the objectivity of judges in the capital sentencing context. Maj. Op. at 1109-16. The majority opinion lists the following five problematic circumstances with judge-based capital sentencing:
1. Presentation of inadmissible evidence to judges;
2. More truncated and informal presentation of evidence and argument;
3. Lack of “the conscience of the community”;
4. Acclimation of the judge to the capital sentencing process; and
5. Political pressure on judges facing election.
Id.
As with most other matters, there is another side to the story, reflecting the fact that juries have their own problems in the capital sentencing context.
The Capital Jury Project, funded by the National Science Foundation, is an empirical study of “death penalty decision making by jurors.” Theodore Eisenberg and Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L.Rev. 1, 2 (1993). 916 capital jurors, from 257 capital trials in eleven states, were interviewed. The study revealed that:
many jurors reached a personal decision concerning punishment before the sentencing stage of the trial, before hearing *1130 the evidence or arguments concerning the appropriate punishment, and before the judge’s instructions for making the sentencing decision. Moreover, most of the jurors who indicated a stand on punishment at the guilt stage of the trial said they were “absolutely convinced” of their early stands on punishment and adhered to them throughout the course of the trial.
William J. Bowers, Marla Sandys, and Benjamin D. Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt — Trial Experience, and Premature Decision Making, 88 Cornell L.Rev. 1476, 1477 (1998).
The study also disclosed that many “early pro-death jurors” presumed that overwhelming proof of guilt justified imposition of the death penalty. Id. at 1497. More than half of the jurors were of the view that “death was the only acceptable punishment for ... repeat murder, premeditated murder and multiple murder.” Id. at 1504. The data in the study has been described as supporting a conclusion that:
the presence of structural aggravation and the nature of the life or death decision itself will continue still to promote premature punishment decision making, thus discouraging a full and open evaluation of constitutionally sanctioned sentencing considerations. Beyond this, the data show that punishment concerns also invade and befoul the work of guilt decision making. Jurors frankly admit that they consider punishment in deciding guilt, despite admonitions not to do so.
Id. at 1541.
Any indecision in dea!th penalty deliberations is more likely to be resolved in favor of death. Eisenberg and Wells, Deadly Confusion, 79 Cornell L.Rev. at 13. The study suggests that “a defendant on trial for his life at the punishment stage has one foot in the grave.... The juror favoring life faces a struggle ... that will last throughout the deliberations ...” Id. at 14.
One analysis of the Project’s data focused on the South Carolina component of the study. South Carolina “yielded the most extensive set of data of all the states participating ... encompassing] interviews with 187 jurors in fifty-three cases tried in South Carolina between 1988 and-1997.” Stephen P. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L.Rev. 26, 28-29 (2000). This subset of data reveals that sympathy and pity pervade capital sentencing deliberations despite instructions to the contrary, id. at 34, and race is a dominant factor in determining who is sentenced to death. Id. at 45.
The empirically established problems with jury sentencing deliberations calls into question the majority’s facile conclusion that transfer of capital sentencing responsibility to a jury will enhance the accuracy of the process.
The majority opinion bemoans the fact that inadmissible evidence is presented to judges. Maj. Op. at 1110-11. However, in most states the same inadmissible evidence that most concerns the majority, victim impact statements, is available to jurors. See Garvey, The Emotional Economy of Capital Sentencing, 75 NY.U. L.Rev. at 48. The majority opinion also laments the informal presentation of evidence to a judge. Maj. Op. at 1110. In contrast, the Capital Jury Project reveals that more formal presentation of evidence is not of assistance to capital juries. To the contrary, jurors are confused by the aggravating and mitigating standards of proof, Eisenberg and Wells, Deadly Confusion, 79 Cornell L.Rev. at 10; are unclear as to whether and when the law mandates death, Bower, Sandys and Steiner, Foreclosed Impartiality, 83 Cornell L.Rev. at 1523; and make up their minds *1131 before any evidence is presented as to the appropriate penalty. Id. at 1477.
The majority opinion views jury determination of the penalty as an indispensable manifestation of the jury’s role as the “conscience of the community.” Maj. Op. at 1113. However, empirical evidence suggests that the “conscience of the community” is not necessarily the fairest adjudication for a capital defendant. Not only do jurors prejudge defendants, they also engage in penalty negotiations during the guilt phase. Bowers, Sandys and Steiner, Foreclosed Impartiality, 83 Cornell L.Rev. at 1477, 1527. Their decisions are tainted by considerations of sympathy, pity, anger and disgust. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L.Rev. at 34. And their death determinations are influenced by race. Id. at 45.
The majority opinion notes that the judge’s acclimation to capital sentencing may negatively influence the judge’s assessment of the sentence. Maj. Op. at 1113-14. But not everyone views judges’ experience as a negative. See Hon. Randall R. Jackson, Missouri’s Jury Sentencing Law: A Relic the Legislature Should Lay to Rest, 55 J. Mo. B. 14, 17 (opining that unjust sentencing disparity is greatly reduced when judges rather than juries impose sentencing). 2
Finally, the majority refers to the pressures on judges facing election to impose the death penalty. Maj. Op. at 1114. The majority cites to a law review article to support its statement that “judges who face election are far more likely to impose the death penalty.” See Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L.Rev. 759, 793 (1995). However, the statement made in the law review article is just that — a bald statement, with no accompanying empirical evidence.
The other law review article cited, Fred B. Burnside, Dying to Get Elected: A Challenge to the Jury Override, 1999 Wis. L.Rev. 1017, 1039-44, is a discussion of judicial overrides of jury determinations in Alabama, Florida, Indiana, and Delaware. The article does not even attempt to compare the relative rate of death sentences imposed by juries as opposed to judges. In any event, the comprehensive Capital Jury Project informs us that judges are not alone in facing pressure. Jurors are subjected to similar pressure when deliberating in capital cases. Jurors negotiate votes in order to “avoid! ] the stigma of being a hung jury.” Bowers, Sandys, and Steiner, Foreclosed Impartiality, 83 Cornell L.Rev. at 1527. In the final analysis, the jury is still out on the question of whether the decision in Ring enhances the accuracy of the capital sentencing process.
That fact defeats the majority opinion’s premise that Ring fits within the first prong of the Teague exception applicable to new procedural rules. Its analysis fares no better when the second prong is considered.
B. Ring’s Alteration of Our Understanding of Bedrock Procedural Principles
The majority opinion rests its conclusion on the observations that Ring is not subject to harmless error analysis, and is of widespread application. Maj. Op. at 1116, 1119.
As previously discussed, the Supreme Court implied, if npt held, that Ring requirements are subject to harmless error analysis. See 122 S.Ct. at 2443 n. 7. Coupled with that circumstance is the limited *1132 application of Ring when contemplated in the proper context. Juries alone are responsible for deciding capital sentences in 29 of the 38 states with capital punishment laws. Holly Shaver Bryant, Capital Punishment/The Death Penalty: Trends in 2002, Report on Trends in the State Court, National Center for State Courts (2002). Accordingly, Ring’s application is limited to capital cases in 9 states, a far cry from the majority’s ambitious description of Ring as “affect[ing] the structure of every capital trial.” Maj. Op. at 1119.
' In addressing Ring’s exemption as a procedural rule from the Teague bar on retroactive application, the Eleventh Circuit court described Ring as “not sufficiently fundamental” to constitute a “watershed” rule of criminal procedure. Turner, 389 F.3d 1247, 1285 , 2003 WL 21739734 at *36 . (citations omitted). Instead, the court characterized Ring as creating a rule “based on the Sixth Amendment right to a jury trial and not on a perceived, much less documented, need to enhance accuracy or fairness of the fact-finding in a capital sentencing context.” Id. at *37, 1286.
The majority’s contrary holding that Ring created a new substantive rule or, in the alternative, a watershed rule of criminal procedure precipitates an unwarranted circuit split.
III. Conclusion
Whether analyzed as a new substantive rule or as a new rule of procedure, the decision in Ring does not fall within any of the exceptions set forth in Teague . The majority opinion’s analysis is not compatible with Supreme Court precedent, our prior rulings, or the law of our sister circuits. In light of Ring’s adherence to the precepts in Apprendi , I would declare the nonretroactivity of Ring , and affirm the district court’s denial of Summerlin’s habe-as petition.
. See list of cases on file in Clerk’s office.
. See James S. Liebman, et al., Broken System: Error Rates in Capital Cases, 1973-1995 at 5 (2000) available at .
. Id., at i (emphasis added).
. See id. at 38-40.
. See, e.g., Jodi Wilgoren, Citing Issue of Fairness, Governor Clears out Death Row in Illinois, N.Y. Times, Jan. 12, 2003, at 1.
. See Death Penalty Info. Ctr., Innocence and the Death Penalty, at www.deathpenaltyin-fo.org^article.php? did=412 & scid =6 (visited July 5, 2003). As of June 2003, DNA tests — a reasonably new scientific development — have established the innocence of at least 128 individuals who were wrongly convicted and imprisoned. See David Feige, The Dark Side of Innocence, N.Y. Times, June 15, 2003, § 6, at 15.
. The Majority Opinion’s discussion of the retroactivity of Apprendi is included in its alternative discussion of Ring as a new procedural rule. However, that discussion is also pertinent to the comparison of Ring, Walton, and Apprendi .
. Although this article addresses the unique Missouri statutory scheme whereby juries determine all sentences, the principle applies with equal force to capital sentencing.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496370. Public record. Not legal advice.