By an 8 to 3 vote, an expanded panel of the San Francisco-based...

By an 8 to 3 vote, an expanded panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled that a 2002 Supreme Court decision requiring jury sentencing in all future capital cases should also apply retroactively. The Ninth Circuit's decision could lead to the technical commutation of sentences of more than 127 prisoners in Arizona, Montana, and Idaho. These are the three states within the jurisdiction of the Ninth Circuit that utilize judges, not juries, to sentence defendants in capital cases. The decision directly affects Arizona, Montana and Idaho, the 3 states within the 9th Circuit's jurisdiction that have used judge-only sentencing in capital cases. Defense lawyers who handle capital cases said it would invalidate the sentences of about 90 of the 127 convicted murderers on death row in Arizona, along with 17 of 21 death row inmates in Idaho and 5 of 6 in Montana. If upheld by the Supreme Court, the ruling would lead to the largest single reduction in the country's 3,500-inmate death row population since January, when then-Illinois Gov. George Ryan (R), citing the "demon of error" in his state's capital punishment system, commuted the sentences of 167 convicted murderers to life imprisonment. If the decision stands, the convicts could receive new penalty trials before juries. The large number of death sentences involved, and with the fact that other federal appeals courts have reached contrary rulings on the issue, mean that the Supreme Court probably will agree to intervene, legal analysts said. Yesterday's ruling was the latest aftershock of the Supreme Court's landmark 2000 ruling in a case known as Apprendi. In Apprendi, the court held that the constitutional guarantee of a jury trial meant that every fact that might result in an increased penalty for the defendant must be found by a jury beyond a reasonable doubt -- not, as some states did under certain circumstances, by a judge, according to a more relaxed standard of proof, in a separate sentencing proceeding. Last year, in a case known as Ring v. Arizona, the court ruled that Apprendi requires juries to determine the factual basis for death sentences, thus invalidating sentencing systems in Arizona, Idaho, Montana, Colorado and Nebraska under which that job was left to a judge or panel of judges. But at that time, the court did not address the highly technical question of whether its decision should apply only prospectively, or whether people already under sentence of death could use it to revive their appeals. The case decided yesterday was brought by Warren Summerlin, whom an Arizona jury convicted in 1982 of raping and murdering Brenna Bailey, 36. Summerlin was sentenced to death by Phoenix Superior Court Judge Philip Marquardt under an Arizona law that called for a judge, not a jury, to determine whether the heinousness of the crime outweighed various mitigating factors, such as the defendant's troubled upbringing. Marquardt later left the bench and was disbarred, in part because of his confessed addiction to marijuana. The 9th Circuit described this as an extreme illustration of the principle that a 12-member jury is a better safeguard against sentencing error than a single judge, noting that Marquardt had not only been "drug-impaired" at the time of Summerlin's sentencing, but also had relied upon inadmissible evidence in determining the sentence. If the 9th Circuit ruling is upheld, its reach could extend to Nebraska and Colorado, which had similar laws to Arizona, Idaho and Montana and where an additional nine death row inmates might benefit.