June 25, 2004
The first telephone call Thursday brought joy, the next one misery for Chandler resident Anne Cox. First came news that the U.S. Supreme Court ruled against her daughter's killer, who argued that Arizona's 2-year-old law requiring juries to decide death penalties should be retroactive.
The ruling affected 85 other Arizona death row inmates and 24 in other states with similar murder laws.
Then came word that Wesley Summerlin, who murdered and raped 25-year-old Brenna Bailey on April 29, 1981, has enough appeals to last several years.
"My husband's angry and I'm sad by the whole outcome," said Cox, 66. "It doesn't really make any difference, we still don't have Bren."
However, the high court's 5-4 decision brought a sigh of relief to prosecutors, who won't have to resurrect cases that are decades old for juries to hear and they don't have to come up with the money for it.
"In our opinion it was a solid decision that clarified the law and will alleviate a lot of litigation, saving the taxpayers a lot of money," said John Todd, an assistant attorney general who argued the case before the high court April 19.
Dale Baich, an assistant federal public defender who oversaw Summerlin's appeal, said the court was putting "form over substance" with the ruling.
"The majority relied on a judicially created procedural technicality to deny the right of a jury trial," Baich said.
A judge condemned Summerlin July 12, 1982.
Arizona judges sentenced people to death until June 24, 2002, when the Supreme Court ruled the law unconstitutional in the case of Ring v. Arizona, forcing the change to sentences by juries.
Supreme Court rulings aren't retroactive unless the change affects the "fundamental fairness and accuracy" of criminal proceedings, according to Thursday's ruling.
Justice Antonin Scalia, writing for the court, said the 2002 change was simply procedural.
‘‘The right to jury trial is fundamental to our system of criminal procedure, and states are bound to enforce the Sixth Amendment’s guarantees as we interpret them,’’ Scalia wrote.
But that doesn't mean a death row inmate who has had a full trial and a round of appeals in state court can "continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy and Clarence Thomas agreed with Scalia, while Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer were in the minority.
"All that the decision really means is there's one less issue for the 86 individuals on death row to litigate," Baich said.
Baich said he doesn't anticipate anyone will be executed for another year because all of Arizona's death row inmates still have appeals pending.
Summerlin still has a hearing in U.S. District Court to determine whether his sentencing judge, Phillip Marquardt, who was a habitual marijuana smoker, was impaired during Summerlin's sentencing. Marquardt has since stepped down from the bench and been disbarred and has admitted that he was "likely" high when he imposed the death sentence, Baich said. "It's not over, what can you say," Cox said.
Bailey encountered Summerlin when she showed up at his Phoenix home to collect a delinquent debt from his wife.
Summerlin has been diagnosed with a brain dysfunction, found to be mentally disabled and has an explosive temper, court records state.
Bailey was found in the trunk of her car beaten to death.
"If they ever do exercise the death penalty, I'm not going to be there anyway," Cox said. "It's just such a sad thing he ruined his life and our life."