Death Penalty Law in Arizona Overturned by U.S. Appeals Court

A federal appeals court struck down Arizona’s capital punishment statute Thursday, ruling that a jury should have decided whether to impose the death penalty on a man who admitted killing newspaper reporter Don Bolles with a car bomb in 1976.

In a decision that could affect death penalty statutes in the four states that require judges to decide sentences in capital cases, the U.S. 9th Circuit Court of Appeals ruled that Arizona’s law requiring judges to balance contributing factors in deciding whether to impose the death penalty violates a defendant’s basic right to a jury trial.

The court, in a 7-4 opinion, also held that the Arizona statute unconstitutionally creates a “presumption of death” in certain cases by limiting judges’ discretion and fails to give the courts enough guidance in prescribing the death penalty for especially “heinous, cruel or depraved” crimes.

The decision marks the first time in recent years that the full court has declared a state’s death penalty statute unconstitutional.

Lawyers said the decision “essentially nullifies” the death sentences of all 82 inmates on Arizona’s Death Row and raises questions about statutes in Montana, Idaho and Nebraska, which also have laws requiring judges to determine whether special circumstances exist that merit imposition of the death penalty.

In the case of John Harvey Adamson, who admitted planting a dynamite bomb under Arizona Republic reporter Bolles’ car, the court also held that it was “vindictive prosecution” that sent Adamson to Death Row after earlier being sentenced to 49 years in prison.

Adamson had agreed, in exchange for the prison term, to plead guilty to second-degree murder and to testify against the two men he said hired him to plant the bomb.

But when the Arizona Supreme Court reversed the convictions and death sentences of Max Dunlap, a Phoenix building contractor, and James Robison, a plumber, in part because Adamson had refused to answer some questions on cross-examination, Adamson indicated that he would not testify during any retrials, contending that he had already satisfied the terms of his plea agreement.

The state Supreme Court held that Adamson was, in fact, still required to testify under the terms of the agreement, and the state filed first-degree murder charges against him. Adamson at that point offered to testify against Dunlap and Robison, but the state refused to accept his offer and proceeded against him, although prosecutors never refiled charges against the men who had allegedly hired him.

Adamson was convicted by a jury of first-degree murder and sentenced to death.

The court majority, in an opinion written by Judge Warren Ferguson, held that Adamson was entitled to an evidentiary hearing on the issue of whether the prosecution was vindictive in pursuing the capital charges against him simply because he had initially refused to testify against Dunlap and Robison.

“The circumstances surrounding the state’s decision to seek the death penalty for Adamson clearly reflect the real likelihood of real vindictiveness and thus give rise to a presumption of vindictiveness,” the court said. “More importantly, the decision to file the increased charges directly followed Adamson’s assertion of his constitutional right against self-incrimination.”

But the focus of the decision was on the Arizona death penalty statute’s provision that the death penalty is to be imposed in cases where a judge finds one or more aggravating circumstances that are not outweighed by mitigating factors that call for leniency.

Most states, including California, require juries to determine the presence of “special circumstances,” and the court majority held that these special circumstances actually amount to additional factual elements of a crime, which defendants have a right to have decided by a jury.

“The historic roots of the right to jury trial provide an essential backdrop to this discussion,” the court majority said.

“The cornerstone of this protection is the right to have a jury determine the existence of the facts necessary to determine guilt or innocence of a given crime. . . . These assessments (of aggravating factors) directly measure a defendant’s ‘moral guilt’ and overall culpability--traditionally the jury’s domain of decision.”

Critical of Other Provision

The court was also critical of the Arizona statute’s provision that defendants must prove there are mitigating factors weighing against a death penalty, a requirement that the court said unconstitutionally places the burden of proof on the defendant and creates a “presumption of death” requiring the judge to impose the death penalty if the defendant is not able to meet the burden, even though there may be mitigating factors.

In Adamson’s case, the judge found the existence of two aggravating factors, the fact that Adamson was to be paid to commit the crime and that the bombing, which left Bolles critically injured without legs and only one arm until he died 11 days later, was “especially heinous, cruel or depraved.”

The Arizona Supreme Court has attempted to define those terms to guide judges in deciding whether they apply. But the appellate court majority cited a wide variety of apparently conflicting cases and held that the courts have failed to provide clearly discernable parameters for determining what kinds of crimes fall within those aggravating factors.

Majority Opinion

Judges Procter Hug Jr., Mary M. Schroeder, Harry Pregerson, Dorothy Nelson and William A. Norris joined in the majority opinion. Judge Boochever concurred in all but the majority’s findings that the death penalty had been arbitrarily imposed on Adamson in view of the same judge’s previous finding that the same crime warranted only 49 years.

But a coalition of conservative judges on the court, in a dissent written by Judge Melvin Brunetti, disagreed with nearly every major holding of the majority, including the finding that defendants are entitled to have a jury determine whether there are special circumstances warranting the death penalty.

Special circumstances are sentencing factors that have traditionally been within the purview of judges, and the Supreme Court has traditionally left it up to states to decide how to carry out sentencing so long as no fundamental principles of justice are affected, said Brunetti, joined by Judges Arthur Alarcon, Robert Beezer and David Thompson.

Factual Findings

Adamson’s lawyer, Timothy K. Ford, said the majority of states have long required juries to make factual findings in death penalty cases.

“If this were decided the other way, there would be no right to jury trial in this country on anything,” he said. “If you can take away the right to a jury trial on the facts that make you eligible for a death sentence, then you can take away the right to a jury trial on anything.”

Crane McClennen, assistant chief counsel in the criminal division of the Arizona attorney general’s office, said the state would appeal the decision.

Judges, he said, are better equipped than juries to make the determinations necessary to decide whether a crime meets legal standards. “Now, the 9th Circuit is saying you have to have 12 people who know nothing about the legal system deciding these extremely complicated legal matters,” he said.