Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

the Bands’ officials for the Bands’ conduct of gaming. II That lan- from Class excluded injunction gaming on their reservations. Its result. guage compels our equitable power its and did not was within why Congress questions Sycuan Band The Anti-Injunction violate the Act or the Youn- gaming II the tradi- permit as Class would ger doctrine. The district court abstention (with aids to game electronic pull-tab tional ruling operation also did not err that prohibit the same participation) and widen pull-tab con- the Bands’ electronic machines electronically in entirely stand- played game gaming III under IGRA. stituted Class and need not machines. We cannot alone Congress definitively; question answer Viejas Band are The Barona Band and sufficiently the result of this dictated appeal. Sy- entitled to their costs on statutory language it chose. It is case cuan Band and the State will each bear their inconceivable, however, Congress regard appeal own costs. With to both the that, gam- in casino the view had in mind judgment cross-appeal, of the part product, and package is bling, the court is district in a wholly contained coin-аcti- game that a AFFIRMED. prod- a somewhat different vated machine is form carried game in live uct from the same computer trans- aid of video or

on with the least, rationally Congress At could

mission. so found.

have

Finally, note that our conclusion an “electronic facsimile” machines offer

these regula- pull-tab not inconsistent with Gaming National Indian devised tions Wayne JEFFERS, Jimmie defining II Class to assist Commission Petitioner-Appellant, 502.7, part an elec- games. Under C.F.R. game II is “a device aid to a Class tronic cable, telephone, televi- computer, as a such LEWIS, Director, Depart Samuel sion, bingo blower and that when satellite or Corrections; ment of Donald Wawrzasz (b) readily distinguishable ... Is

used— ek, Superintendent, Arizona State Pris game of chance on an playing from the Respondents-Appellees. on, facsimile[.]” electronic or electromechanical No. 86-1840. not, in issue here are pull-tab machines view, from a readily distinguishable in our Appeals, States Court United facsimile. game of chance on electronic Ninth Circuit. therefore, affirm, the district We (en Argued and Submitted Model 101 ruling that the Autotab court’s banc) May 1994. machine is “an electronic pull-tab video chance,” Sept. 1994. Decided game of facsimile of a mechanical III under 25 properly categorized as Class Nov. As Amended 2703(7)(B)(ii). cannot § The Band U.S.C. a Tribal-State

employ them in the absence of

compact.6

VII. Conclusion correctly ruled

The district prosecute jurisdiction to was without may prescribe procedures which the tribe under which tribes other route Indian 6. There is one gaming. 25 U.S.C. may Class III gambling. conduct If the can maintain Class III 2710(d)(7)(B)(vii)(II). does not § The record bargain good a federal court faith and fails to proce- prerequisites mediation, for this enter the show the state fails to orders mediator, Secretary this case. dure exist in compact chosen Leto, Klein,

Frank P. Donald S. Asst. Defenders, Tucson, AZ, County Pima Public Gardner, Derham, and Clifford Gardner & Francisco, CA, petitioner-appellant. San MeMurdie, Counsel, Atty. Paul J. Chief Office, Phoenix, AZ, respon- General’s dents-appellees. WALLACE, Judge,

Before: Chief FLETCHER, FARRIS, PREGERSON, NORRIS, BEEZER, WIGGINS, NOONAN, THOMPSON, RYMER, LEAVY and Circuit Judges.

Opinion by Judge R. DAVID THOMPSON; by Judge Dissent PREGERSON; by Judge Dissent NOONAN. THOMPSON, Judge:

DAVID R. Circuit jury an Arizona convicted Jimmie Wayne degree murder.1 Af- first sentencing hearing, trial court ter found two factors miti- and.no gating circumstances. The court sentenced death, Ari- Jeffers to in accordance with the statute, zona death Ariz.Rev.Stat. (currently § (Supp.1973) Ariz.Rev. 13=154 (1989)). § Stat.

The Arizona Court vacated Jef- fers’s death sentence and remanded his case resentencing light to the trial court for Watson, that court’s decision in State v. (1978), 586 P.2d 1253 cert. 440 U.S. 59 L.Ed.2d 478 (1979). Watson, principles applied of Lockett Ohio, 438 U.S. capi which held a sentencer to the proceeding

tal cannot be restricted 3092, 3094-98, greater 111 L.Ed.2d 606 1. The facts of this case are set forth in 764, 766-73, (1990). Jeffers, 497 U.S. detail Lewis reversed, stating factors enumerated specific mitigating statute, rejected claim in but must consider had an identical Walton Arizona, 639, 652-55, background or char- aspect of a defendant’s 3056-58, justification offers as a 111 L.Ed.2d 511 Lew- acter the defendant 764, 777, penalty. ‍​‌​​​​‌‌‌​​​‌‌​‌​‌​‌​​​‌​​‌​‌‌‌​​‌​​​​​‌​​​‌​​‌‌‍imposing Jeffers, is v. for not 111 L.Ed.2d 606 It July the trial On June 20 and proceedings. remanded the case for further sentencing hearings. supplemental court held 110 S.Ct. at 3104. aggravating factors: Jef- Again it found two to a third grave risk fers created remand, Following panel again ordered murder, person in commission of the the writ issued and vacated Jeffers’s death especial- murder in an Jeffers committed the panel opin sentence. This time the held the heinous, cruel, ly depraved manner. See ion of the Arizona Court was not 13-703(F)(3) (6) (1989). §§ Ariz.Rev.Stat. sufficiently permit panel clear to to de mitigating circum- The trial court found no whether, termine consistent with to death. stances and resentenced Jeffers 738, 110 1441, 108 Mississippi, 494 U.S. S.Ct. (1990), 725 L.Ed.2d review, On reweighed all Court had prove insufficient to Jef- found the evidence against remaining aggra circumstances grave knowingly fers created risk Lewis, 1199, vating factor. 5 F.3d person committing mur to a third while Jeffers (9th Cir.1992). 1206-09 der, aggravating factor. and invalidated 404, 428-29, Jeffers, 661 State v. 135 granted banc We en review. We now af- denied, 1105, 1129-30, P.2d cert. firm the district court’s denial of the writ of 865, 174 The Arizona 78 L.Ed.2d corpus. habeas Court also found the state failed to prove Jeffers committed the murder an DISCUSSION manner, especially “cruel” but determined Clemons, 741, Under 494 at 110 U.S. surrounding that “the events the murder it 1444, in “weighing” S.Ct. at state such as support finding self the trial court’s Arizona, when a court bases its decision ‘especially .... murder was heinous and de ” impose a death sentence on both valid and praved.’ 661 P.2d at 1131. The factors, aggravating appellate invalid a state sentence, court affirmed Jeffers’s death stat1 only per court can affirm the sentence after ing, independent “In our determination we review, forming reweigh or harmless-error found one factor —that the of ing against evidence the re especially fense was committed heinous maining valid factors. See Rich depraved manner —and — Lewis, —, —, mond v. U.S. 113 sufficiently factors substantial to call for le (1992); 121 411 S.Ct. L.Ed.2d So niency.” Id. at 661 P.2d at 1133. — Florida, —, —, chor v. U.S. 112 The United District Court for the States (1992); S.Ct. 326 petition District of Arizona denied Jeffers’s —Black, —, Stringer v. 112 U.S. S.Ct. corpus. for a writ of habeas Rick Jeffers 1130, 1136, 117 L.Ed.2d 367 etts, (D.Ariz.1986). F.Supp. ap 627 1334 On specified has never the de peal, panel granted of this court the writ of gree clarity appellate with which a state corpus and vacated habeas Jeffers’s death reweigh in court must order to cure an other panel.held although sentence. The Richmond, wise invalid death sentence. See “especially aggra ... depraved” heinous — at—, 113 at U.S. S.Ct. 13-703(F)(6) vating factors listed in section scrutiny appellate of the Arizona Revised Statutes were consti Close state court — -, required, Stringer, 112 tutional as construed the Arizona Su U.S. at Court, prеme factors had not not said those been S.Ct. but the Court has constitutionally applied appear appellate in Jeffers’s case. what must in the state (9th Ricketts, opinion 832 F.2d court’s for us to conclude it has satis- Cir.1987). reweighing requirements. fied Clemons’s

415 whether the said, required as to determine Clem ord applying O’Connor Justice review, outweigh aggrava mitigation factors harmless error standard ons’s Richmond, circumstances, 114 ting court’s bald assertion” “[a]n denied, (1976), P.2d 41 cert. principled explana Ariz. “a error without harmless L.Ed.2d 1101 that conclu 433 U.S. court reached of how the tion — Sochor, (1977), they Jeffers, 135 we find do not.” U.S. is not sufficient. See sion” 431-32, (O’Connor, J., P.2d at 1132-33. Ariz. at —, at 2123 hand, other the Court concurring). On the though the Arizona Even sentencing by the a statement has said that Richmond, it is clear the court’s inde cited mitigating evi it considered all explana and'its pendent review of record Dugger, 498 adequate, Parker v. dence reweighing process satisfied the tion of its 736-37, 308, 314-15, 111 S.Ct. U.S. Stringer. requirements of Clemons circuit and in this L.Ed.2d 110 S.Ct. at 494 U.S. at law, even state courts follow presume — —, 1449-56; Stringer, v. Pask they indicate. Beam fail to so when at 1136. (9th Cir.1993), ett, cert. 3 F.3d Jeffers, howevеr, argues the Arizona —, engaged in not have Court should (1994). L.Ed.2d 354 aggra an reweighing once it invalidated any Here, not Supreme Court the Arizona contends the case should vating factor. He re reweighed the only independently it said the trial court to have been remanded to miti against the maining aggravating factor remaining aggravating factors reweigh the circumstances, principled a provided gating mitigating circumstances. He against began by It explanation of what it did. trial to remand to the contends this failure obligation under section acknowledging its process under right to due court violated his 13-703(E) the Arizona Revised Statutes of disagree. Amendment. We the Fourteenth rec review of the independent an undertake Clemons, reviewing court “Following a aggravating of the existence ord to consider resentencing compelled to remand” not circumstances, and “deter mitigating and factor, aggravating so an when it invalidates outweigh the if the latter for ourselves mine independent reweighs the evidence long as it present.” to be we find both former when Parker, 111 at 739. ly. 498 at S.Ct. U.S. at 1129. It Ariz. at 661 P.2d Jeffers, 135 Waltоn, 497 647, 110 at S.Ct. U.S. See also trial before the analyzed the evidence then Because the aggravating presence of to evaluate the court aggravating reweighed the It circumstances. invalidated circumstances, required to remand it was not found aggravating factors one of the law. under federal the case court, another. Id. at 428- and modified however, a law, guarantees Stringer, at 1129-31. 661 P.2d Cf. rights at sen procedural defendant criminal at—, 112 at 1136-37. S.Ct. lib may give rise to a state-created tencing, mitiga- The court next assessed arbitrary depri protected erty interest arguments It examined his tion evidence. Due Amendment’s Fourteenth vation regarding long-term his testimony and the Oklahoma, 447 Hicks Process Clause. See heroin, on of alcohol and heroin of his use use murder, prov- his assertion the date of the Clemons, also L.Ed.2d murder, the statements for the ocation 746—47, at 1447-48. Jeffers U.S. at 110 under the psychiatrists while made to he cre argues the Arizona amytal. Jeffers, influence of sodium uniformly liberty interest such a ated 430-31, Agree- P.2d at 1131-32. Ariz. at to the trial cases remanding findings, the Ari- court’s ing the trial fac aggravating invalidating an after no there was Supreme Court concluded reject argument. tor. We mitigation. supporting substantial evidence 746^7, The court then P.2d at 1132. Id. at a considered stated, the rec- carefully reviewed have “We Mississippi Supreme similar claim. The [TJhere was no real evidence that Defen- factor, aggravating Court had invalidated an dant was intoxicated at the time of the addressing and refused to remand to the trial court for a offense. The evidence histori- sentencing hearing. marginal equivo- cal familial argued new abuse was pursuant cal to section as to its' causal connection with 99-19-101 of the Code, Mississippi only jury murder. Defendant’s mother did not had the author- indi- ity Court, cate that Defendant impose was abused or ne- death sentence. The glected up, when he however, growing and De- held that because in Clemons’s showing fendant made no case, cases, difficult Mississippi and other Su- family history anything had to do with the preme authority Court had asserted its un- murder_ Although sup- Defendant’s independently der law to decide wheth- port by family and love for and affirmed, and friends er a death sentence should be might force, have some it does “unqualified” liberty Clemons had no interest require finding mitigation having jury reweigh suffi- his leniency.... sum, cient call our mitigating circumstances. Id. at independent review of the record at 1447—18. shows no significant mitigating evidence. Similarly, Court has Bible, 175 Ariz. at 858 P.2d at 1209. developed policy remanding a uniform Because the Arizona Court found invalidating after factor. See mitigation Bible’s evidence ofwas Hinse, Note, Appellate Karen L. Review of weight,” more than “de minimis it did not Analysis Death Impact Sentences: An simply upheld remand but his death sen- Arizona, Mississippi Clemons v. tence. 858 P.2d at 1212. Ariz.L.Rev. In some apparent It is from the cases, decisions of the the Arizona simply Court unquali- Court there is no upheld See, e.g., sentence. State v. right fied to a Bible, remand to the trial court for 549, 607, 1152, 175 Ariz. 858 P.2d 1210 resentencing (1993) (after when an aggravating factor is invalidating fac is, therefore, invalidated. There tor, no constitu- response “our has been more consistent — tionally recognized liberty interest in theory practice”), denied, in than in cert. procedure. such a See 494 —, U.S. at 1578, 114 U.S. S.Ct. 128 L.Ed.2d 221 747, 110 S.Ct. at (1994); 1447-48. See also Smith, United 491, State v. 146 Ariz. 707 Neumann, 242, 252, v. States Von 474 (1985); Poland, U.S. P.2d 289 State v. 144 Ariz. (1986) 610, 616, 106 S.Ct. 88 587 388, L.Ed.2d (1985), 147, aff'd, 698 P.2d 183 476 U.S. J., (Burger, concurring); 1749, Connecticut Bd. (1986); 106 S.Ct. 90 L.Ed.2d 123 Dumschat, 458, Pardons v. Gillies, ‍​‌​​​​‌‌‌​​​‌‌​‌​‌​‌​​​‌​​‌​‌‌‌​​‌​​​​​‌​​​‌​​‌‌‍452 564, U.S. 101 v. 142 (1984), 691 P.2d 655 2460, (1981); denied, S.Ct. 69 L.Ed.2d 158 1059, 105 Thomas- 1775, cert. 470 U.S. S.Ct. 84 FBI, (9th 1202, Lazear v. (1985). 851 F.2d L.Ed.2d 834 In others it has re Cir.1988); Smith, 1021, De Silva 175 F.2d See, manded for resentencing. e.g., State v. (9th Cir.1985). 1024 Hinchey, 352, 165 Ariz. 799 P.2d 963, 360 cert. 499 U.S. 111 argues Jeffers reweighing process 1589, (1991). S.Ct. 113 L.Ed.2d 653 See also any flawed in event because the trial court as Ricketts, 1011, Adamson v. 865 F.2d 1038 well as the Arizona Court failed to (9th Cir.1988), cert. denied sub nom. Lewis evidence, consider all of his Adamson, 1031, 3287, 497 U.S. 110 S.Ct. 111 Lockett, 604, violation of 438 at 98 S.Ct. L.Ed.2d 795 Oklahoma, Eddings at 455 U.S. 104, 113-14, 869, 876-77, 71 example An the Arizona L.Ed.2d 1 Bible, declining to resentencing remand for There, case, 175 Ariz. at 858 P.2d at 1210. capital [may] the “senteneer ... precluded invalidated one not be from considering, as a miti- three gating factor, any factors found aspect of a defendant’s trial court. It then assessed the defendant’s any character or record and of the circum- in mitigation, evidence and stated: stances of the offense that the defendant age, impaired), his significantly capacity was less than for a sentence as a basis proffers there was no evidence the fact that at Eddings, 455 U.S. death.” there Lockett, that while at 98 duress. The court found 438 U.S. (quоting at 874 stress, 2964). California, provocation, Boyde v. evidence also was some See S.Ct. 1190, 1196-97, 377-78, 110 killing, such evidence was a motive for the S.Ct. 494 U.S. (1990); Maryland, mitigating circum- Mills v. to establish insufficient 108 L.Ed.2d 1860, 1865-66, 374-75,108 stances. (1988); Skipper v. South L.Ed.2d 384 Supreme Court also discussed 1, 4,106 1670- Carolina, 476 U.S. evidence, it insubstantial. this found (1986). Similarly, “the sen- P.2d at 1131- Ariz. at Jeffers, 135 or be to consider may not refuse tencer found, independent re- its It also after considering ‘any relevant precluded record, court had the trial view of the ” Eddings, (quoting Id. mitigating evidence.’ presented in miti- examined all evidence 877). hearings. post-trial trial and gation at the sentencing hear- and at Both at trial Id., P.2d at 1132. The Ariz. at mitigation. evidence ings, offered Jeffers this. record confirms However, first sentenced trial court when the failure argues trial court’s to consider it refused him to death evidence he each item of to list and discuss not rise to the did mitigation evidence that the trial mitigation offered in demonstrates statutory mitigating fac- level of enumerated mitiga all of his neglected to consider decision, Ari- unpublished In an tors. argument he support To tion evidence. Jeffers’s Supreme Court vaсated McCormick, 914 F.2d relies on Smith to the trial the ease and remanded (9th Cir.1990), stated which we all statu- to consider instructions court with explicit findings on that a court must make mitigating evidence non-statutory tory and circumstances, “in all relevant aggra- against weigh that evidence warrant cluding those it finds insufficient vating factors. is mis leniency.” reliance on Smith remand, trial court to that Pursuant placed. sentencing hearings. supplemental held two 1180, 1196 Blodgett, 5 F.3d hearings the court found: these After Jeffries — —, (9th Cir.1993), cert. there are no THE COURT FINDS (1994), 1294, 114 S.Ct. regard, mitigating circumstances. language in quoted Smith found the pre- all evidence has the Court considered interpretation court’s dictated the Smith post in the trial in the trial and sented requiring the court “specific state statute all report hearings, pre-sentence weight of to the findings as to make written The Court accompanying documents. mitigating evidence.” miti- possible all of the further considered enumer- which where gating circumstances Arizona law Here, whether it is unclear in_ 13^454, § and the ated A.R.S. specific find make required the trial court to possible has further considered in miti offered items of evidence ings on all in ... set forth mitigating circumstances Ricketts, F.2d v. But see Clark gation. 13-703, § section G. the new A.R.S. Cir.1991) (Arizona (9th has no 851, 858 n. 5 mitigating circum- search cert, Court’s nom. denied sub listing requirement), to either of limited has not been stances 117, U.S.—, Lewis, 113 S.Ct. v. Clark statutes, v. pursuant State but these hand, the other On 121 L.Ed.2d 73 Ohio, [sic] v. Watson and Lockwood 516, 506, Vickers, 633 P.2d 129 Ariz. State mitigat- any possible Court has considered (1981), 315, ing circumstances.... Revised section 13-703 said a trial court require not does Statutes specifically discussed trial court also long as the findings, so alcohol, such detailed his make drugs and addiction all of the evi and considered court heard date of the drugs on the and alcohol use theOn defendant. presented (but dence his of credible evidence the lack murder Leslie, 50, hand, 147 Ariz. other of the death when sentencer finds (1985), P.2d State Rich- outweigh mitigat factors mond, 114 Ariz. at 560 P.2d at seem ing Blystone circumstances. See also opposite to reach the conclusion. 299, 305, Pennsylvania, 494 U.S. 110 S.Ct. 1078, 1082-83, (1990); 108 L.Ed.2d 255 requirement We do not find a clear under Boyde, 494 U.S. at 377. The Court also held Arizona law that the must itemize sentencer 13-703(E) section of the Arizona Revised every piece and discuss of evidence offеred in automatically Statutes does not require the mitigation. inapposite. Although Smith is imposition of penalty, or fail to listing helpful procedure such would be allow for an individualized sentence determi clarify that court considered all miti- Walton, 652, 110 nation. 497 U.S. at S.Ct. at evidence, gation necessary this is not 3056-57. Here, present it clear case. the trial court all considered evidence Jeffers offered in argues impermis- next he was mitigation. sibly penalized with the death exercising right jury his to a trial after he specific Nor was Jeffers entitled to a rejected the state’s offers of a less harsh listing piece and discussion of each of miti exchange guilty sentence in plea. for a He gating evidence under federal constitutional contends the state’s last offer would have important law. While “it is that the record plead guilty allowed him to degree to second appeal reviewing on disclose to the court the murder and receive a sentence not to exceed considerations which motivated the death twenty years prison. argument sentence,” Florida, This Gardner 430 U.S. meritless. 97 S.Ct. L.Ed.2d 393 (1977) (plurality opinion), process “due does A trial court is not restricted its require exhaustively that the sentencer sentencing to rejected plea the terms of a analysis document its of each fac offer, Hayes, Bordenkircher v. 434 U.S. long reviewing tor as aas federal court can 363-64, 663, 667-68, 54 L.Ed.2d 604 discern from the record that the state court prosecutorial Nor does “the practice did indeed consider all evidence threatening a defendant increased offered Jeffries, the defendant.” 5 F.3d charges plead if he does guilty, and fol Parker, at 1197. See also 498 U.S. at lowing through on that if threat the defen 735-38; Clemons, 494 U.S. at trial,” dant on right insists his to stand Ala 1449; Clark, 958 F.2d at Smith, 794, 802, bama v. 490 U.S. above, 858. As discussed because is evi 104 L.Ed.2d 865 create dent the trial court considered all presumption prosecution. of vindictive by Jeffers, evidence offered there was no due Goodwin, United States v. 378- process violation.2 2485, 2492-93, 73 L.Ed.2d 74 argues (1982);

Jeffers also the 212, Arizona Jersey, sen Corbitt v. New 439 U.S. tencing 221-23, scheme is 492, 498-99, unconstitutional because 99 S.Ct. 58 L.Ed.2d 466 require fails to prove (1978); the state to Heldt, death is the United States v. 745 F.2d appropriatе 1275, (9th Cir.1984). argument sentence. This lacks 1280-81 In Borden- Walton, 651-52, kircher, merit. 497 U.S. at 110 the voluntarily rejected defendant a 3056-57, at S.Ct. the pretrial plea Court held Arizona required offer would have a constitutionally can imposition mandate the five-year prison sentence. The trial court 1087, (1985). 2. Jeffers the asserts trial court failed to evaluate 84 L.Ed.2d 53 There is no consti- mitigating as a circumstance the fact that on failing tutional violation a sentencer to consid- several occasions the state offered him less harsh mitigating er circumstances when a defendant exchange guilty plea. sentences in for a Because neglects argue to such circumstances exist. See argue Jeffers failed to before the state courts that 299, 4, Blystone Pennsylvania, 494 U.S. 306 n. plea state's offers constituted cir- 1078, 4, 110 S.Ct. 1083 n. 108 L.Ed.2d 255 cumstances, if the trial court or the Arizona ‍​‌​​​​‌‌‌​​​‌‌​‌​‌​‌​​​‌​​‌​‌‌‌​​‌​​​​​‌​​​‌​​‌‌‍(1990). 10, Eddings, See also 455 U.S. at 115 n. Supreme Court failed to consider this evidence ("Lockett requires 102 S.Ct. at 877 n. 10 sentencing, neglect is attributable to Jef- listen.”). sentencer to Oklahoma, 68, fers. Akev. 470 U.S. 105 S.Ct. Cf.

419 sentencing jury, and there- than rienced imprisonment life defendant sentenced simi- impose sentences able to held be- fore is better The Court following his conviction. chargeable analogous cases.” imposed in properly was lar to those the defendant cause law, voluntarily legislature to applicable The decision under offer, was no plea there reject judge responsibility trial vest chose 358-59, 98 violation. circum- constitutional find Corbitt, at 439 U.S. also 665-66. See process at does not This S.Ct. is rational. stances 221-23, 499-500. 99 at S.Ct. unconstitutional. render statute rejection of contend his does not Jeffers imposi Arizona’s contends Jeffers voluntary, or that he not plea offers was Equal penalty violates tion of the penalty. with the death chargeable not was Amend of the Fourteenth Clause Protection of the he aware found was district court punishment cruel and unusual and the ment offers, refusing plea taking he was risk Amendment, Eighth because provision of the does Jeffers F.Supp. at 1361. Jeffers, 627 penalty discrimi imposes finding. dispute this convicted of natorily impoverished males on argues Arizona’s Jeffers next argument lacks This killing Caucasians. Equal Protection violates stаtute merit. be Fourteenth Amendment of the Clause McCleskey Kemp, 481 U.S. 13-703(B) Arizona Re cause section 262 95 107 L.Ed.2d S.Ct. judge to requires Statutes vised a defendant Supreme Court held that aggrava existence the factual determine “the deci- prove must alleging discrimination capital in a circumstances ting with a discrim his case acted sionmaker[ ] in 13-604(K) Ari ease, whereas section Carriger v. Lew also inatory purpose.” See Rule of Revised Statutes Cir.1992) (en (9th banc), is, F.2d 334 971 19.1(b) non-capi entitle Criminal Procedure U.S.—, denied, cert. jury hearings for sentence tal defendants (1993); Pulley, 163 Harris 123 L.Ed.2d Sherrill, 168 See State enhancements. (9th Cir.1988), cert. 885 F.2d 2 & n. 469, 472 P.2d & n. denied, 493 U.S. Ylst, (1991). F.2d 417 Myers See also L.Ed.2d 848 (9th Cir.), cert. His victim is Caucasian male. no evi- offers female. He a Caucasian is the same argument. It reject this We that his eco- an inference supporting dence rejected in argument we confronted and gender of his race or or the nomic status There, relying on Clark, at 859. 958 F.2d sentence, in his played part victim 647,110 Walton, at at 497 U.S. signifi- constitutionally such factors create require held, “The does Constitution in the Arizona impermissible bias cant risk circum- jury that a find McCleskey, sentencing process. See capital sentence,” and a death supporting stances 1767; Carriger, clause equal protection merely invoking Harris, 334; F.2d at 1373- F.2d at Clark, 958 F.2d result. not alter this does 74. “qualitatively are sentences Death CONCLUSION Woodson prison sentences. different” Carolina, 96 S.Ct. 428 U.S. v. North peti- denial of The district court’s (1976) (plurali- L.Ed.2d AF- corpus is of habeas for a writ tion Florida, 428 U.S. ty opinion). In Proffitt FIRMED. L.Ed.2d stated, (1976) the Court opinion), (plurality PREGERSON, Judge, whom with Circuit lead, any- if sentencing should “[J]udicial FLETCHER, A. WILLIAM Judges Circuit consistency in the greater thing, to even dissenting: join, and NOONAN NORRIS capital of trial court level imposition at the respectfully dissent. expe- We judge is more a trial since punishment, Penelope Cheney The yond murder is not the already those he was set to serve on an prototypical killing commonly results in unrelated offense. imposition penalty, of the death nor even the Birdsafl, Judge Ben C. judge kind killing prosecutors for which com- initially death, who sentenced Jeffers monly penalty. seek the death Mr. Jeffers aggravating found two circumstances killer;

was not a serial he did not kill ran- (1) grave murder: Jeffers had created a risk domly; strangers. he kill did not He was (2) person; of death to another and the mur- extremely emotionally. unstable He suffered heinous, der especially was committed in an disorder, personality from a borderline and cruel, depraved manner. sentencing judge testimony heard drugs Mr. attempt Jeffers used in an to self- The Arizona reversed long-term medicate this condition. He was a Judge finding aggra- Birdsall’s as to the first heroin addict and alcoholic. He was under vating factor. The court Judge also reversed drugs the influence of these at the time of finding Birdsall’s that the murder had been Cheney’s Ms. murder. maimer, committed in a “cruel” as that term is used in the Arizona Revised Statutes. See Cheney girlfriend, was Jeffers’s former IR^OSÍFXe).1 § Ariz.Rev.Stat. with The court experienced whom he a tempestuous upheld only Judge relationship. finding Birdsall’s The two were togeth- arrested charges er on murder was possession especially committed an drugs hei- receipt property. depraved of stolen nous and manner. It After Jeffers based this Cheney jail, bailed out of he determination on heard that she Jeffers’s treatment of Che- cooperating police ney’s was against body him. after she lost consciousness. jail Soon after he was released from on bond

he apartment invited her over to his to dis- I. DISCUSSION. getting together. cuss back When she came state,” “weighing Arizona is a over, they which means apparently quarreled, and Jeffers that, capital case, in a requires killed state law her. weigh sentencer to all aggravating of the Cheney’s cause Ms. death was an against factors one another “to heroin, overdose of induced Jeffers. Af determine the substance of the two kinds of consciousness, ter she lost attempted —Lewis, U.S.—, factors.” Richmond v. her, her, strangle inject to beat and to —, 528, 535, 121 L.Ed.2d 411 more heroin into her veins. But because she (1992). The may impose sentencer a death already unconscious “the victim experi only if it finds that aggravating pain enced no suffering” mental as a factors weightier are than the result of Jeffers, this abuse. State v. ones. Id. 404, 429, 661 P.2d 1130 cert. de nied, 464 U.S. 78 L.Ed.2d Having invalidated one cir- cumstance, having partially negated the other, warranting evidence Court should guided overwhelming. was not have beеn roughly requirements can We set gauge prosecution’s forth in v. Mississippi, assessment of the offense, case, its overall view plea initially offer it made that Jeffers the U.S. prosecution declined. The dispute does not Court held that in a permit that it offered to plead weighing not, Jeffers to may consistent with the murder, degree contest to second Amendment, Eighth for which merely affirm a death he was to eight years receive in prison be- invalidating any after aggrava- 13-703(F)(6) § requires definition, Rev.Stat. Following dictionary the Ari- consider, sentencer to stance, as an circum- Court defines "cruel” as "dis- wanton, posed pain esp. to inflict in a “[t]he whether insensate defendant committed the manner; heinous, or vindictive cruel, sadistic." especially 135 Ariz. at offense in an or de- (internal quotation 661 P.2d at 1130 marks praved manner.” omitted).

421 COURT SUPREME THE ARIZONA II. for the basis formed the that ting factors IS AMBIGUOUS. OPINION Rather, court must appellate the sentence. a de novo receives defendant the that ensure Arizona of thé review Our of a sentence propriety the by the U.S. Su guided opinion assessment is Court’s remaining valid the death, solely on and its in opinions based Clemons preme Court’s v. Lew Richmond cases, See factors. the Court aggravating In these progeny. — at—, (requir 535 require S.Ct. at is, Eighth 113 Amendment U.S. the addressed calculus, if the sen sentencing weigh in a appellate court state ing a “new that a ments stand”). law to does not federal if it chooses “While follow is to state must ing tence resentencing re court to for appellate court require the state remand not must, circum aggravating of re invalidating it short resentencing, after mand is “a requirement the inval touchstone reweigh without mand, stance. itself either ag invalid role an analysis that of the thorough or determine factor aggravating id sentencing in played er gravating harmless factor factor was invalid weighing the — U.S.—, Black, — v. U.S.—,—, Stringer process.” Florida, Sochor ror.” L.Ed.2d 117 367 (1992). —, 112 S.Ct. 2119, 119 326 L.Ed.2d 112 S.Ct. well-established, are principles The above us to requires be of the record review Our majority that agrees the dissent sentencing or novo required de that the sure factor, and aggravating invalidating one upon actually under analysis was error harmless remaining fac- only invalidating the partially Clemons, at 110 U.S. 494 See taken. Ari- required the tor, and Sochor proceed (remanding for further at 1451 S.Ct. before us in the case be sure” whether “we cannot ings because (1) Jeffers’s remand things: one of three do in harmless engaged court supreme state (2) de engage resentencing; ease for Richmond Lew analysis). also error and miti- reweighing novo — (“[a]t a at—, at 535 113 S.Ct. is, U.S. if itself to determine gating factors the state minimum, that must determine for Mr. Jef- punishment appropriate was ap reweighed”). Where actually court Judge (3) that crime; determine or fers’s clearly indicate does peals court decision aggrava- overstating the error BirdsaU’s undertaken, analysis was required beyond a reason- harmless ting factors case and the be vacated must sentence doubt. able resentencing. court for the state remanded 1444 at S.Ct. at U.S. company majority part and the The dissent un it is remanding “because (vacating and rec- that the majority’s assessment over Mississippi Supreme whether clear sufficiently clear case ord er harmless applied reweighed correctly” Arizona Su- determine us allow to — U.S. Stringer, analysis). See also ror оf Clem- requirements met the preme Court Barclay (opinion —, reweighing the actually ons 3418, 77 Florida, U.S. affirming Jef- before mitigating factors (1983) the re illustrative L.Ed.2d sentence. fers’s review, where appellate quirements “only affirmed reading superficial Only a appellate clear” supports the it was because opinion Court’s Jeffers analy error in harmless engaged had court Arizona court majority’s conclusion — at-, Sochor, sis); U.S. standard. the Clemons followed opinion “clarity” (requiring state light carefully read opinion is When —in error in harmless engaged whether about understand- Supreme Court’s Lewis, Richmond see analysis). But sentencing time, role of its ing, at (the Supreme at 535 at—, about whether arise doubts process grave— degree of yet specified constitutionally Court his actually received required).2 clarity resentencing. mandated Dugger, Parker seriously mischaracterizes majority The Supreme Arizona opinion Court’s (1977); 560 P.2d 54 Richmond, State v. too ambiguous satisfy to this standard. As 560 P.2d 41 majority notes, opinion the the twice refers State v. Jeffers, 135 Ariz. at 661 P.2d at to obligation weigh the court’s aggra- to the added). (emphasis Then, sepa- after vating mitigating circumstances. But- rately discussing proffered mitigat- Clemons; this alone is dispositive. not In ing circumstances,' challenges and his to the too, appellate the opinion state court vacated factors, the by court concludes by Supreme the U.S. Court recited that the stating has, indeed, that weighed ag- court “weighed” had the aggravating and gravating and mitigating factors. In so do- mitigating against circumstances each ing, other. the Arizona Supreme opinion Court’s See 494 U.S. at 110 S.Ct. at uses almost the language same as did the (quoting supreme the state court opin- Mississippi Supreme Court in the Clemons ion, noted, that reviewing record, after decision by that was reversed the U.S. Su- “ opinion ‘[i]n our ... punishment preme Court. The Supreme great too opinion not when states: weighed circumstances are carefully We have reviewed the ‍​‌​​​​‌‌‌​​​‌‌​‌​‌​‌​​​‌​​‌​‌‌‌​​‌​​​​​‌​​​‌​​‌‌‍record as against (Alterations each other....’” required to determine whether the factors original.)). The Court deemed such in mitigation outweigh the aggravating cir language because it cumstances, Richmond, was unclear State v. insufficient 114 Ariz. whether the state court cоnvey intended to P.2d cert. the message that it “conducting was appel- U.S. 915 [97 S.Ct. 53 L.Ed.2d 1101] reweighing (1977) late as we understand the con- they we find do not. cept.” 752,110 (emphasis at 1450 State v. Jeffers, 431-32, 135 Ariz. at 661 P.2d added). at 1132-33. Although these statements refer to some The Jeffers, statements State 661 P.2d sort of weighing, we must be sure that the similarly are unenlightening. The first court referring reweigh the de novo weighing reference to opinion serves ing required by Clemons. requires Clemons to introduce the Court’s that “[w]here the death sentence has been discussion of the aggravating circumstances. infected vague or otherwise constitution opinion notes: ally invalid aggravating factor, ap the state eases this indepen pellate court court or some other state senteneer dently reviews the facts that the trial actually perform must new sentencing cal court presence culus, established the if the sentence found is to stand.” Rich absence circumstances, Lewis, and mond v. at—, 113 S.Ct. at we determine for ourselves if added). the latter (emphasis read, Closely pas outweigh the former when we find both sages quoted above do suggest suсh a de present. Blazak, be 114 Ariz. Rather, novo reweighing. they indicate that (1991) standing statement, as alone, standing court’s as ade- proposition "a Rather, statement quate. the sentenc- cited several other ing court that it considered all evi- reasons for its judge conclusion that the trial adequate.” dence is majority opinion had, fact, evidence, considered all as he majority 414-15. If means that such a state- statement, said judge's he did. If the trial stand- ment requirements, satisfies Clemons Parker alone, ing sufficient, had been the Court would says fact, nothing of the sort. supports Parlcer necessary have found it to cite other the dissent's requires conclusion finding. reasons for its sufficiently record to be clear to assure us point, Even more to the supreme the state required reweighing or harmless error court's statement in sug- Parker that "the facts analysis in fact are conducted. gesting the sentence of death are so clear and convincing discussion cited majority virtually refers to person reasonable judge's the trial that he could adequate statement had differ” was not cоnsidered convince sentence, all of the evidence passing before supreme Court that court duty not to the of the state had satisfied Clemons. See id. at reweigh point ("[i]t under Clemons. And in of fact the at 738 is unclear what Florida United States accept here”). Court did not Court did suspicion raises This error cumstanee. “independent Court’s Supreme Arizona the boilerplate lan- substituted the court “established” that the facts is limited review” analysis careful individualized guage for the court. by the trial Amendment. Eighth by the required in the import, neither greater even Of elsewhere, does nor passages, quoted itself addition, opinion contradicts above the In Arizona the nature of specify the opinion mitigating the factors the which, any, if as to In review. independent Court’s Supreme the court whether “weighed,” or indeed court “indepen- words, the court although other any were there find that not or did found facts, and determines the dently reviews” For all. exam- at mitigating circumstances circumstances aggravating the whether itself page page-, ple, on ones, court does the mitigating outweigh the above, the opinion, quoted it em- of review standard specify what not mitigating weighed that has asserts court the trial to disturb whether ploys to decide contrast, page-, on In factors. findings. court’s in- we are opinion the same 1133 of page quoted Supreme above Court passages the wording of the Arizona The that formed re species with a is consistent no factors. found “new error, the sen than view, rather ap- Court Moreover, Supreme Arizona the Eighth Amend the that tencing calculus” it un- on whether itself pears to contradict sentence a death requires when ment have found Judge Birdsall derstood aggravating factors. by invalid infected been e.g., Compare, tri- mitigating circumstances. — at—, Lewis, v. Richmond (“[t]he finds that court court’s statement al fact, as discussed In at 535. circumstances”) with are no there Court section, Supreme Arizona the following P.2d at Jeffers, 135 Ariz. State in decided was State the time Jeffers court “found the trial that (finding a de novo generally conduct 1983, did not sufficiently substantial mitigating factors sentencing calcu death review added)). The leniency” (emphasis call for aggrava an invalidate fit to it saw when lus ambigu- full of opinion is such Jeffers Arizona Nothing in the ting factor. these crit- contradictory language on ous suggests in State opinion Court’s Jeffers in fully issues, discussed as ical was then from departed what that court today. majority by the opinion withdrawn it reviewed when procedure normal its Cir.1993). (9th Lewis, F.3d Jeffers case. instant the Arizona that So, be sure can we how the Arizona that confidence Our ag- actually reweighed Court “thor requisite actually conducted Court in circumstances gravating and aggrava the role invalid analysis of ough At- Arizona bar, even when case at process,” sentencing in played ting factor figuring out had trouble torney General at—, Stringer, January of In did so? court that whether by the inconsistencies shaken is further implicitly Attorney General 1991, the Arizona invalid valid in its discussion found in Supreme Court Arizona that admitted part second example, For factors. reweigh the independently did not above, the Arizona quoted passage, Jeffers Respon- mitigating factors. aggravating weighed the says it has Brief, January filed Answering dents ear the court But plural. “circumstances” Attorney Todаy Arizona pp. 9-11.3 cir- only one such there was lier held imposed ... have would that the case knew distinguish instant attempting 3. court had if that penalty” even Attorney General’s the Arizona aggravating factors. holding overcounted correctly Clemons’s stated 1991 brief words, Attorney General Arizona other may not affirm appellate court Supreme Court argued effect aggravating cir- on invalid based review. error harmless aggra- satisfied reweighing the either without cumstances Attorney did General per- that the fact else mitigating circumstances vating and argue Ari- alternatively additionally or Attorney forming error review. a harmless re- de novo engaged in a argued that next General Jeffers mitigating circum- weighing of "it requirement because met General opinion reads his court’s dif- penalty statute, The Arizona death and its ferently, argues interpretive caselaw, the court provoked did re- great deal weigh aggravating of and confusion that cir- was not resolved until We, when dissent, Supreme cumstances. who are in U.S. Court decided Rich mond v. Lewis, also Lewis. find it difficult to In Richmond v. determine whether the Court for the first Supreme did, squarely Arizona time not, Court or determined did en- that Arizona state, is a gage weighing and there proper weighing calculus.

fore invalidated an Arizona Supreme Court III. THE decision in majority PRACTICE OF THE which a ARI- Arizona Supreme

ZONA Court SUPREME had failed to reweigh COURT CON- THE FIRMS factors as AMBIGUITY. re — quired by Lewis, Clemons. Richmond v. The ambiguities discussed might above be at—, U.S. 113 S.Ct. at 537. Before the significant less if it were otherwise clear that Supreme Court decided Richmond v. Arizona Court understood the Lewis, however, the Attorney Arizona Gener requirements Eighth Amendment and argued al judge the three panel which first consistently required conducted inquiry heard the instant case in 1986 that Arizona at the time it opinion delivered the State was weighing not a panel state. Another But Rather, that is not the case. Jeffers. our accepted argument when it fair reading Arizona Supreme Court cases decided the case that was by reversed on the books in State v. when in Richmond v. Lewis. decided, was suggests that that court did Lewis, 1473, 1489(9th Richmond v. 948 F.2d understand requirements that Clemons — Cir.1990), rev’d, U.S.—, explained; moreover, later the court was 121 L.Ed.2d 411 As we then read the even clear about whether Arizona was a statute, weighing state. (cid:127) conclusion the Arizona Courts that fact, In the Arizona eases cited in the there are no substantial mitigating cir- passages quoted above to a refer kind of cumstances separate indepen- from review required by different Clem dent conclusion regarding the exis- Richmond, ons. In State decided in tence aggravating circumstances. In- Court ap described its validation of an aggravating circumstance pellate process. review explained The court does not reweighing mandate require that in non-capital cases “[i]t has been our resentencing where the court has found policy not to disturb the imposed prosecution that the has met its burden of court, the trial absent a clear abuse of establishing discre aggravation sufficient to war- tion.” 114 Ariz. at 560 P.2d at rant the state’s harshest ... and capital cases, however, “we painstakingly ex defense has failed to establish amine the record to determine whether circumstances sufficiently it sub- been erroneously imposed.” stantial to call leniency.... Id. this con for Nothing text, it clear that the Arizona “independent suggests statute review” the need and “reweighing,” plenary reweighing referred to where the court in record still State reveals that there are Richmond and one or more in State v. Jeffers, involve enumerated error, review for circumstances rather and that there than are no mitigating the de novo circum- resentencing required by stances sufficiently substantial Clemons call progeny. and its As the Arizona leniency. explained Court in State v. Rum- sey, “[w]hile independent (emphasis added, we have an duty of citations and review, perform quotations omitted, internal appellate court, as an and alterations modified). not as a trial court.” 136 Ariz. P.2d aff'd, words, In other Attorney Arizona Gen- eral, at least some Court implicit

stances is an admission that it did not do so. tribunal best by the reweighing require all of were Ninth Circuit Justices, process handle equipped to weighing not a —the Arizona was view court. context in this It was state. Jeffers, decided the Su with whom years NOONAN, Judge, before nine Circuit issued was which contrary in Rich Judges PREGERSON held Circuit preme dissenting: at—, join, Lewis, A. NORRIS WILLIAM mond years before seven person was one 1977 and Between decided. United Arizona. of by the state executed circumstances, reason- it is not such Justice, Under of Jus- of Bureau Department States Arizona the that to assume able Bulletin, Capital Punishment tice Statistics in reweighing requisite engaged Court fifteen 9, the same 1992, 10. In p. Table boilerplate, am- should Nor case. to sentenced persons were 103 year period held “reweighing” be to references biguous Id., Table p. Appendix in Arizona. death Su- clearly that to demonstrate of by the Office now informed 2. We are we “as un- reweighed actually preme Court there are that of Attorney Arizona General concept.” in Ari- derstand of death under persons 117 is Something more 752, 110 S.Ct. in executed been one has zona, and that requisite example, where For required. it facts of these the face On or 1994. 1993 gen- would we analysis performed is novo de of the administration appears that of the discussion some to see erally expect to arbitrary as con- is so Arizona in to the assigned weight in vio- relative punishment and unusual stitute cruel reasons of the and mitigating factors to Con- Eighth Amendment of the lation minimum, aat weight, or such assigning appli- made as States the United of stitution in factors types of the two of discussion by some the Four- of Arizona to the state cable is com- analysis Such other. each to relation Amendment. teenth here. pletely absent by advanced has been This contention conclusory compare It is instructive power when this court But Jeffers. v. State in “reweighing” of treatment Jeffers sponte consider sua requires justice it Bible, 858 175 Ariz. in State with passed nor pressed “neither of law questions — U.S.—, (1993), cert. P.2d agency or administrative court upon (1994),a case 1578, 128L.Ed.2d Helvering, 312 Hormel below.” and Rich after Clemons decided L.Ed. 1037 557, 61 S.Ct. Bible, noted the court In Lewis. mond dissent, I also Pregerson’s Judge Joining impossible simply is many cases “in to exer- the court of the failure dissent heard judge how determine —who constitutionality to decide power cise its witnesses —evaluat and saw evidence requires the justice as practice Arizona testimony. evidence weighed that ed to do. determinations, the imperative these Without of Ari- people “The say: might populist A be сannot mitigating factors judges penalty. Our want P.2d Ariz. at Id. 175 balanced.” who judges federal you It is impose it. in Bible Arizona 1211. The speedy delay the objections technical your it would that henceforth conclude on to went can- You condign sentence. execution a de novo engage in remand, than rather a reason as your obstructionism invoke cases. rarest but the in all resentencing, vindicat- method chosen outlawing our Su agrees dissent The life.” ing human regard. in this views preme Court’s only to appeal would response Such a believe that sum, because we dissent In and the of Arizona laws ignorant of those his consti- have received may not Mr. law Under States. resentencing. United de novo tutionally mandated automatically ap- of death every sentence now practice, the better also believe We of Arizona. Court, pealed to to by the Arizona followed Bible, 175 Ariz. P.2d 3,000 determined that in over cases the death (1993); 26.15, Ariz.R.Crim.P. penalty was unconstitutionally imposed. See 31.2(b). The record Hugo entire is then Bedau, reviewed Adam The Death Penalty in Bible, the court. (1982) 175 Ariz. at §58 America 68. Between 1973 and P.2d at 4,704 1211-12. capital The in persons record cases were sentenced to death. has a “voluminous nature.” Id. at 457 instances the statutes under which they can, P.2d at 1211. It for example, were consist in sentenced invalidated; were 451 in- “more than 120 testimony volumes of stances their overturned; convictions were instances, numerous exhibits and filings easily exceed- their sentences were set aside 15,000 ing pages.” illegal. 1,698 Id. as study persons all found by were record is “time-consuming.” Id. An courts to opinion have wrongly been sen- in a death, may case tenced to be sixty a rate of over error of over 36%. pages length. Bible, Capital E.g., supra. p. Punishment Appendix Court Arizona Table 1. appeals, has other criminal, civil and decide addition to Since the sentence of death has been penalty death appeals. Consequently, has, imposed on persons in Arizona. In 56 of years in the 1991 and only decided these cases the conviction or the sentence penalty twelve appeals. death In the same has been judicially reversed. In more than period twenty-two persons have been sen- cases, one then, three person has been to by tenced death Arizona trial courts. erroneously sentenced to death by an Ari- Capital Punishment p. Appendix zona trial Capital court. Punishment Table 2. The work load Supreme p. Appendix Table 4. It is small wonder Court of Arizona alone assures that the num- Supreme the Court of Arizona conducts persons ber of under sentence of death a careful review of penalty death cases to Arizona and unexecuted will if increase the assure that neither state nor federal error trial courts to impose continue has infected process the prejudicially. penalty at the same rate they as im- have There will be federal review after the state posed it in past. courts have finished their work —at least that It is possible, hypothetically but realistical- is a presumption reasonable given degree ly improbable, that the Supreme Court of of devotion of opponents of the death penalty Arizona would cease to decide other criminal to exhausting legal all remedies and to the appeals all civil appeals and devote itself possibility, in at many cases, least fairly of entirely to eliminating backlog in death raising a claim that certiorari should be penalty appeals. highly It is unlikely that granted by the United States people of Arizona would want a or corpus habeas granted should by be only Court whose business was the decision federal district court. It is the work of the of penalty death cases. It is hypothetically lawyers dedicated pursue who legiti- these possible, but realistically improbable, that mate appeals that process extends the Court of Arizona would aban- delays final resolution of a case. But these don its conscientious of review the entire lawyers are not to be faulted for their zeal. record in penalty death cases and automati- They are neither pettifoggers nor fanatics. cally every affirm sentence of death. Such a They are either seeking application gratuitous and suggestion offensive has no established principles constitutional pre- factual fоundation. senting fair and argument reasoned for the extension of principles. established They are Arizona conscien- doing what good lawyer always tiously does for reviews the entire record for error his or her client. They are not obstructing under the laws and constitution of Arizona judicial process but serving it. and for error under the Constitution of the United States. The United States That there many precedents are invoke, to Court has found in the many Constitution to be applied extended, or to be ais fact of restraints and limitations on imposition of modern death penalty jurisprudence. That by death the state. Since 1967 courts have this should be true is not due to the courts and the Hawkins, Capital Punishment from earlier shift to a substantial but alone (1980) 95. Agenda American death opinion about in educated centuries in the sanction as a Expressly set penalty. justify may be made arguments Four state, European every Bible, employed First, it is administered. system as such sanction as a criminal of death imposition value the state affirms symbolically Paradoxically, righteous. routine as setting death life human af- life was of human value incalculable its execu- postponed in is if even took that, person if a holding firmed symbols; the on depends tion; of law much sufficient be life, would only his own human denigrat- not to be symbol of a is importance elite especially opinion, Then compensation. put to death Second, person who ed. belief without those For changed. opinion, death; to deserve found belongs to a class an awfulness there is immortality, in human him if others no unfairness there person. a human extinction the utter about Third, found persons spared. are class the deliberate religious, are those who For years to wait deserve also deserve usur- to be the appears life taking of human if heads and their over hanging The- belongs to God. power that of a pation punishment, kind of they not care do over authority state’s challenge the orists Fourth, appeals. all waive they should sup- the deterrence doubt Pragmatists life. bargaining penalty is a of the death existence European nations achieved. Most posedly by them used to be prosecutors chip for a number so did practice; up the gave guilty plead a murderer persuading States United states. American death. less than for a sentence exchange verge of declar- to the came be answered must arguments, it To these and unusual cruel to be death ing the thing preserve one it is first unconstitutional. therefore punishment sym- a flag as object such as inanimate penal- The verge was reached. a life as human thing to take a bol, another divided, ambivalent, Hesitant, ty survived. symbol life as a human To take symbol. quali- it with surrounded as a custom sacrifice human suggests fications. society believes state; modem rational no the death sentence for which Second, murders death- although a custom. such charac- brutal peculiarly rationally of a imposed are are more is selected worthy person They provoke outrage. They arouse human society practicing ter. ain victim than the reaction, a beast “Such spontaneous pool of death- from the sacrifice, his selection law- But no live!” he allowed arbitrary. not be should is worthy persons proр- today supposes abiding person Jeffers was FIFO basis. aon not chosen is No lynch law. crime to such response but er to death sentenced first that a supposes even person Jeffers, 135 law-trained valid. State sentence execution speedy trial, appeal, no He was quick P.2d 1105 executing Speed appropriate. 10,1980. were be There July would on resentenced accu- assuring sacrificed before justice has been to death persons sentenced eight least in the fairness judgment exe- been racy in the have who in Arizona that date today judges lawyers Ap- p. Few procedure. Capital Punishment cuted. fair- accuracy and say, “Subordinate is scheduled would Table 2. pendix speed.” advanced case was his only ness because execution bear by decisions process that, ease as each in Arizona The result worthiness special to his connection rational accuracy fairness is reviewed pool was sacrifice; selection his transcripts as a its volumes case with each under Third, to live sentence arbitrary. reviеwing eyes under passes prescribed is not of death have imposed courts, sentences be sub- cannot law; mock death by Arizona in seven- of one rate at the out carried been cannot thing. Prisoners real for the stituted many and execute To sentence years. teen walking,” once as “dead men into turned be gruesome “in a engage is to none almost Quentin California. they at San were Zimring and Gordon E. Franklin charade.” Prejean, Helen Man Walking Dead Finally, it is unconstitutional to induce

a guilty plea by a threat that is itself uncon-

stitutional, which the death penalty is if its

administration is cruel and unusual.

Finding law Arizona’s as administered to irrationally

be so applied as to violate the

Eighth incorporated Amendment as by the Amendment,

Fourteenth I grant would sought by

relief Jeffers.

UNITED America, STATES of

Plaintiff-Appellee, Joseph McKINLEY;

Kevin Seamus Moley, Defendants-Appellants.

No. 93-10754. United States Court Appeals, ‍​‌​​​​‌‌‌​​​‌‌​‌​‌​‌​​​‌​​‌​‌‌‌​​‌​​​​​‌​​​‌​​‌‌‍Taylor Shannon, David Asst. Federal Pub- Ninth Circuit. Defender, lic Tucson, AZ, for defendant-ap- pellant Joseph Kevin McKinley. Argued and Submitted June 1994. Smith, Tucson, D. Jesse AZ, for defendant- Oct. Decided appellant Moley. Seamus Miskell, Robert L. Asst. U.S. Atty., Tuc- son, AZ, and Connelly, Sean Dept,

Justice, Washington, DC, for plaintiff-appel- lee. HUG,

Before: SCHROEDER, and FERNANDEZ, Circuit Judges. FERNANDEZ, Judge: Circuit McKinley Kevin Moley Seamus appeal the district court’s order denying their mo- tions to dismiss the indictment brought against them in Arizona. They assert that subjects indictment jeop- them double ardy and that it is In it grand vindictive. jury charged them placing explosive materials in a motor vehicle employed

Case Details

Case Name: Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 16, 1994

Citation: 38 F.3d 411

Docket Number: 86-1840

Court Abbreviation: 9th Cir.