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Napolitano will Defend State Death Penalty Law before Supreme Court

The Arizona Republic, April 2002

The last time state Attorney General Janet Napolitano faced Supreme Court Justice Clarence Thomas, it was under much more hostile circumstances.

As the lawyer for Anita Hill, Napolitano took on Thomas in one of the most notorious sexual-harassment cases in U.S. history. On Monday, Napolitano will be pleading to Thomas as a swing vote in a Supreme Court hearing that could overturn hundreds of death penalty cases in Arizona and eight other states.

Napolitano said she is confident in her argument, if not in what the court will decide.

"The law is there," Napolitano said. "The Supreme Court may not agree with it, but the law is there."

Napolitano will square off with noted Arizona attorney Andrew Hurwitz, a longtime friend and political ally, who is appealing to the court on behalf of convicted killer Timothy Stuart Ring. Hurwitz has downplayed the potentially broad impact of the case as well as his relationship with Napolitano.

"I have been a political supporter of hers, but this is not a political issue," Hurwitz said. "It's a legal issue."

The Supreme Court already has stayed executions in three states pending the outcome of Ring vs. Arizona, which questions Arizona's system in which judges decide who should receive the death penalty rather than juries. Napolitano will try to defend a system thrown into confusion by the 2000 Supreme Court decision in Apprendi vs. New Jersey, which determined that juries must determine facts that lengthen a criminal sentence.

Anti-death penalty advocates and more than 800 condemned inmates will be monitoring Monday's arguments, as will Arizona's congressional contingent and Napolitano's friends and foes in the governor's race.

Napolitano would not speculate whether her history with Thomas will hurt or help her. But she believes she has a chance with Thomas and Justice Antonin Scalia, two justices who voted with the majority on Apprendi and are expected to be swing votes in the Ring case. Both have indicated in past opinions that they might hold death penalty cases in a different light than other criminal cases, Napolitano said.

With Thomas, at least, it will be difficult to tell where his sympathies lie during Monday's arguments because he rarely asks questions.

The case

Timothy Ring was convicted in 1995 of leading an armored van robbery and murdering the driver, John Magoch.

At issue is whether judges can impose a death sentence without a recommendation from a jury. After Ring was convicted, Maricopa County Superior Court Judge Gregory Martin handed down a death sentence based on testimony from accomplice James Greenham, who the jury never saw and who identified Ring as the shooter.

The Supreme Court upheld Arizona's death penalty system in 1990 in Walton vs. Arizona. But the Apprendi case has thrown a cloud of uncertainty over Walton.

In Apprendi, the Supreme Court threw out New Jersey's hate crimes law after a judge tacked on two extra years to the sentence of man who shot at his new Black neighbors.

Hurwitz argues that allowing a judge to find the facts that put Ring on death row violates his Sixth Amendment right to a jury trial and due process, based on Apprendi. If a jury must judge the facts to add to a sentence, then a jury must judge them to push a murder conviction into a death sentence, Hurwitz has said.

Napolitano will argue that the judge's right to weigh mitigating and aggravating factors when contemplating the death penalty is backed by the Eighth Amendment, which protects against cruel and unusual punishment. The death penalty is not an "extra" punishment like those outlined in New Jersey's hate crimes law but is within the scope of punishments available for murder in Arizona, Napolitano said.

Anti-death penalty advocates disagree. They say that judges are not as impartial as juries and are more likely to hand down death sentences.

"Judges are elected by the voters and are not immune to local political pressure," said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty. "Justice is supposed to be blind, but when your job is at stake, impartiality sometimes falls by the wayside."

In Maricopa and Pima counties, the governor appoints judges with the help of a commission. Then voters review their performance. In rural Arizona counties, judges run for office, but the governor appoints any vacancies or newly created positions.

"It's possible that even if Ring prevails that the court could narrowly shape a ruling that won't overturn all 800 cases in nine states," Elliot said.

The preparation

To prepare for the 30-minute barrage of questions, Napolitano has been studying stacks of legal briefs during nearly every spare moment for the past month.

And she has been put to the test by a hand-picked team of lawyers posing as justices in a series of moot courts.

"Who wants to play Stevens?" Napolitano asks the team before one of the practice sessions.

"I do, I do," answers Assistant Attorney General Rob Ellman.

As Justice John Paul Stevens, Ellman asked the most pointed and challenging questions. Stevens is expected to be a hurdle because he was a dissenter in Walton vs. Arizona, the bedrock case on which Arizona's death penalty rests and which Napolitano will argue to uphold.

Besides arguing that Apprendi does not undermine Arizona's death penalty, Napolitano repeatedly warned during the mock hearing that overturning Ring would shake the foundations of a dozen other precedent-setting cases. She tripped up once, improperly citing a date on a case. The team called a quick timeout, set her straight and then kept firing questions at her.

The team found Napolitano's finish a little flat. They urged her to add some color.

"How about, 'Why are we arguing a case that could affect more than 800 sentences when there is no good reason, and Apprendi doesn't require us to do it?'" Napolitano said.

"That's good, that's the ending," Ellman said.

Hurwitz said he prepared for his argument in much the same way. Unlike Napolitano, Hurwitz has argued before the Supreme Court once before. His experience has taught him that trying to predict the court's will based on arguments is "just reading tea leaves."