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Back From the Dead 

Two death row inmates from Tucson get a second chance at 'life.'

Two Tucson death row inmates this month won fresh sentencing hearings because of the U.S. Supreme Court's ruling last year that it's up to a jury--rather than a judge--to decide what factors will make a criminal eligible for capital punishment.

In 1999, Marcus Finch and Keith Phillips committed a bevy of crimes, including three bar robberies and one murder, all during a 16-day spree in Tucson. After they were caught, a jury found each guilty of 45 counts of armed robbery, two counts of attempted murder and one count each of kidnapping, aggravated assault and first-degree murder.

As was the policy at the time, a judge weighed the pluses and minuses and decided they deserved execution. But the U.S. Supreme Court ruled in Ring v. Arizona that the first half of this policy violated the defendant's Sixth Amendment right to a jury trial.

Jon Young, the appeals attorney in the Finch case, said that although judges are supposed to act without bias, it is not always the case.

"At the time of Finch's sentencing, the Famous Sam killings were pretty high profile, and I think that brought political pressure on the judge," Young said. "I think juries are insulated from the political pressure because they're not running for election.

"Plus, the jury brings a lot of common sense to the court. To use round numbers, if the average age of a juror is 50 years (old), you have roughly 600 (years) of common sense and experience, which you can't get from a single person."

Finch and Phillips are the two most recent death row tenants to get second shots at defending their lives under Ring. In total, 31 Arizona death row inmates became eligible for appeal under the ruling, but seven won on other appeals before their Ring hearing came up. To date, the Arizona Supreme Court has dealt with the first six--and sent back all of them to trial court for resentencing.

In Ring, the U.S. Supreme Court held 7-2 that while it's OK for judges to pronounce sentences, defendants "are entitled to a jury determination of any fact on which the Legislature conditions an increase in the maximum punishment." The two dissenters--not surprisingly--were the justices from Arizona, William Rehnquist and Sandra Day O'Connor.

Like any legal ruling, the words are open to interpretation. The Arizona Supreme Court decided that in these 24 cases, it means that not only must a jury decide what circumstances should elevate the sentence, but also what circumstances should call for leniency. The Court has upheld judges' aggravating factor decisions only when it was blatantly obvious a jury wouldn't have found differently.

In response to the Ring decision, Gov. Jane Hull called the state Legislature into special session to adopt a new sentencing scheme. The Legislature then changed state law so that not only would a jury decide on aggravating and mitigating factors, but also whether to sentence the defendant to death.

This means that next time around, the fates of Finch and Phillips will be decided exclusively by a jury. Young says this bodes well for his client, Finch.

"I think that Mr. Finch will have a excellent chance at receiving a life sentence," Young said. "He had no previous history other than the criminal spree, and the victims involved do not want to see him receive the death penalty. The wife of the victim said there'd been enough killing already. Another victim said since she recovered, she and Finch have talked and reconciled. They correspond now, and she also does not want to see him executed.

"He also has two children, ages roughly 10 and 12, (who) were 6 and 8 at the time of the robberies. I think there's a lot of good reasons for life sentence rather than death sentence."

That's not to say Finch and Phillips are completely in the clear. The attorney general's prosecution team, lead by attorney Kent Cattani, plans to appeal the decision.

Cattani's interpretation of the Ring ruling is that the finding of one aggravating factor is enough to uphold the death sentence. In Finch and Phillips' cases, the Arizona Supreme Court upheld the judge's findings of prior serious offenses because they believed there was no way a jury would have found otherwise.

"We don't think that Ring stands for more than the notion that the jury has to make the finding that the crime is death eligible," Cattani said. "That should be enough. For reasons of judicial economy, we think its just necessary for Ring to make one finding of aggravating factor. Where that factor is obvious, for example--multiple murders or prior convictions--there's no reason to send them through another jury."

The Pima County Public Defender's Office, which represents Phillips, did not return phone calls.

This month, a third death row inmate--multiple murderer Eugene Tucker--also won a new sentencing trial. The court remanded the defendant for resentencing, in part, because the trial judge found Tucker's mother unbelievable when she testified to Tucker's good character and rehabilitation potential. A jury, they ruled, may have found otherwise, and that's enough for a fresh hearing.

Resentencing can be awkward, because the juries that sentence them will not be the same juries that convicted them, Young said.

"The next jury will just hear that he's guilty and sentence him," Young said. "You need one jury to decide all the elements. In a DUI case, it would be like having one jury to decide whether the defendant was drinking, and another to decide whether he was driving."

When a defendant is convicted of first-degree murder, the prosecution is asked to provide aggravating factors or reasons to elevate the penalty, while the defense provides mitigating factors or reasons for leniency in sentencing.

Arizona Revised Statutes lists 10 possible aggravating circumstances that can lead to the death sentence. These include: murder for money, multiple murders, cop-killing, or the murder of people under 15 years old or more than 70 years old. The defendant can also be eligible for the death sentence if he has prior serious offenses or the crime threatened the life of anyone other than the victim.

The law also lists five possible mitigating circumstances, including: the defendant's capacity to appreciate wrongfulness, unusual and substantial duress and the defendant's age. A defendant can also plead for leniency if his participation in the offense was relatively minor, even though he is legally accountable for the murder that was committed by another--or if he could not have guessed that the original crime he was committing would result in the death of another person.

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