WASHINGTON — A day after a federal appeals court decision appeared to signal the likely re-sentencing of upwards of dozens of Arizona death row inmates, a three-judge panel from the same court issued a decision Wednesday in a separate case that significantly limits the effects of the first ruling.
In Wednesday’s decision, the 9th Circuit Court of Appeals held, in a decision binding on all of the federal district courts in Arizona, that re-sentencing by a trial court is not required in the affected cases and that Arizona Supreme Court review of the sentences in question is sufficient.
Key to understanding the divergence between the rulings: Two of the judges who were a part of Wednesday’s ruling had been on the losing end of and written a strong dissent to the decision the day before.
The two cases lay bare an intense and ongoing debate within the nation’s largest federal appeals court over the way Arizona handled the sentencing portion of death penalty trials from 1989 through 2005 — and whether and how federal courts should resolve the issue.
On Tuesday, a closely divided 11-judge panel of the 9th Circuit ordered the re-sentencing of James McKinney due to application of an unconstitutional rule used by the Arizona Supreme Court — and, as such, all lower courts in the state — in how it considered mitigating factors during the sentencing phase of death penalty trials during the 15-year period.
Referencing the 2008 decision of a three-judge panel in the case of James Styers, the court wrote, "We hold ... as we also did in Styers, that the Arizona Supreme Court’s refusal, as matter of law, to give weight to petitioner’s PTSD, requires resentencing."
The five judges disagreeing with the decision in McKinney's case — in a dissenting opinion written by Judge Carlos Bea — warned that the decision could upend the entire 15 years worth of death sentences in the state.
On Wednesday, however, a three-judge panel of the same court issued a decision expressing a rather narrow view of what that re-sentencing needs to look like. Notably, the Wednesday decision also was written by Judge Bea, and he was joined in the decision by Judges Alex Kozinski, who had dissented in Tuesday's decision as well, and Jerome Farris.
After the 9th Circuit had sent Styers's case back in 2008, the Arizona Supreme Court reviewed the sentence, including the claimed mitigating factor, and decided there was "no reason to alter the conclusion reached" when it considered his case previously and affirmed his death sentence.
Styers argued that he needed to be re-sentenced at the trial court level, however, so went back to federal court. Although the case was heard by the 9th Circuit more than two years ago, the court issued its decision in that case — also written by Judge Bea — on Wednesday.
Because the Arizona Supreme Court's decision on how to address the issue in Styers case was to "conduct an independent review under its death penalty statute," rather than send the case back down to a trial court for a full re-sentencing, the panel considered whether that decision itself was contrary to the Supreme Court's prior precedents.
Because it found that actual re-sentencing at the trial court was not required, the panel held that the issue could be resolved through the Arizona Supreme Court's "independent review" of the sentencing decision.
The timing of the decisions is important. Because Wednesday's Styers decision was issued subsequent to the McKinney decision on Tuesday, the Styers decision — that Arizona Supreme Court review is all that is required for any sentences thrown into question by the McKinney decision — is binding on all federal district courts at this point.
What's more, the process here is by no means resolved because of the unique procedures of the 9th Circuit.
To explain, Tuesday's decision came from what is referred to as a "limited en banc" panel of 11 of the appeals court's more than 25 judges. In normal federal appellate proceedings, a losing party — normally before a three-judge panel on appeal — can ask for an en banc rehearing, which is a rehearing by all of the judges sitting on that court of appeals. Because of the size of the 9th Circuit, however, it has implemented the limited en banc procedure — in which the chief judge and 10 randomly assigned judges consider the rehearing.
The losing party to a limited en banc decision can then accept the decision, seek review from the full court — a full en banc rehearing — or ask the Supreme Court to review the case.
At this point, then, Arizona officials must decide what to do with the McKinney decision: Will they seek full en banc review or Supreme Court review or accept Tuesday's decision?
That's not all. Additionally, Styers's lawyers must decide whether to accept the decision, which would be very unlikely, or seek limited en banc review or Supreme Court review of Wednesday's decision. Key to that decision, however, is the fact that, if they go the en banc route and the 9th Circuit chooses to grant a rehearing, the case would go to a different limited en banc panel of 11 judges — which would not even be bound by Tuesday's decision in the McKinney case.