Opinion
Arizona Supreme Court, No. CR-97-0428-AP, No. CR-99-0378-AP, No. CR-99-0243-AP, No. CR-01-0272-AP, No. CR-99-0536-AP, No. CR-99-0439-AP, No. CR-00-0328-AP, No. CR-00-0360-AP, No. CR-00-0447-AP, No. CR-01-0275-AP, No. CR-00-0508-AP, No. CR-00-0544-AP, No. CR-00-0595-AP, No. CR-01-0091-AP, No. CR-01-0100-AP, No. CR-01-0103-AP, No. CR-01-0129-AP, No. CR-01-0270-AP, No. CR-01-0421-AP, No. CR-02-0042-AP, No. CR-02-0044-AP, No. CR-99-0296-AP, No. CR-99-0551-AP, No. CR-99-0438-AP, No. CR-98-0289-AP, No. CR-98-0376-AP, No. CR-97-0317-AP, No. CR-98-0488-AP, No. CR-97-0349-AP, No. CR-98-0278-AP. Maricopa County Superior Court, No. CR-95-01754(A), No. CR96-04691, No. CR98-04885, No. CR1997-011695, No. CR 1999-095294, No. CR1997-03949, No. CR1999-015293, No. CR1997-05555, No. CR1996-011714, No. CR1995-006472, No. CR1999-003536, No. CR-98-003520, No. CR95-09046, No. CR-93-08116, No. CR 92-05731, No. CR-94-11397. Pima County Superior Court, Nos. CR-58177 and CR-60263, No. CR-40086, No. CR-58016, No. CR-61846, No. CR-64663, No. CR-64663, No. CR-43804, No. CR-61452, No. CR-61452, No. CR-55947. Yuma County Superior Court, Nos. S1400CR198311801 and S1400CR198311817. Mohave County Superior Court No. CR-98-838, No. CR-98-1243. Pinal County Superior Court No. CR-96-021235.
Filed July 19, 2002.
ORDER
The pre-briefing conference was held on July 15, 2002, in open court with Andrew Hurwitz appearing as lead counsel for Appellants, John Stookey, Julie Hall and Rudolph Gerber, assisting for Appellants, and Kent Cattani, Assistant Attorney General, appearing for the State.
IT IS ORDERED:
1. The State shall file a single brief addressing the following:
A. The State shall identify those cases in which it is not asserting harmless error.
B. Whether Ring v. Arizona, 122 S.Ct. 2428 (2002), is inapplicable to any of the aggravating factors listed in A.R.S. § 13-703(G).
C. Whether the finding of an aggravating factor can be implicit in the jury's verdict of conviction. For example, whether a finding of A.R.S. § 13-703(G)(8) or (5) is implicit in a jury verdict of guilt of multiple counts of homicide or felony murder, and if so, whether the appellant is therefore not entitled to resentencing under Ring. The brief shall identify which aggravating factor(s) in A.R.S. § 13-703(G) falls within this category.
D. Whether an appellant is entitled to resentencing under Ring if one aggravating factor was not subject to Ring or was explicitly or implicitly found by the jury, but appellant was deprived of a jury trial on others relied on by the trial court.
E. Whether an appellant is entitled to resentencing under Ring if the appellant conceded or did not challenge the aggravating factors found by the trial court. Whether an appellant is entitled to resentencing under Ring if the appellant conceded, or did not challenge, some but not all of the aggravating factors found by the trial court.
F. Whether an appellant is entitled to resentencing under Ring if the State did not argue harmless error in those cases in which the U.S. Supreme Court granted certiorari and remanded. (State v. Ring; State v. Sansing; State v. Harrod; State v. Pandeli) G. Whether Ring explicitly or implicitly requires a jury to make Enmund/Tison findings.
H. Whether any new or amended capital sentencing statute would violate the state or federal Ex Post Facto Clause if applied to these cases.
I. Whether using a new jury (a jury other than the trial jury) to determine aggravating factors in these cases would violate the Double Jeopardy Clause.
J. Whether a sentence can be reduced to natural life if the crime was committed before A.R.S. § 13-703(A) was amended to allow a sentence of natural life.
K. Any other issue common to all or a significant number of the consolidated cases.
2. The State's brief shall be filed no later than August 14, 2002, and shall be no more than 75 pages in length.
3. Lead counsel for Appellants shall file a responsive brief no later than September 25, 2002, which shall be no more than pages in length.
4. The State may file a reply brief no later than October 15, 2002, which shall be no more than 20 pages in length.
5. Jennifer Bedier and David Darby shall file a single brief addressing whether Ring applies to cases such as State v. Hoskins and State v. Nordstrom where the petition for writ of certiorari was denied (prior to the filing of Ring) but the direct appeal mandate has not been issued. The State shall file a simultaneous brief addressing the same issue. The briefs shall be filed no later than August 14, 2002, and shall be no more than 10 pages in length. Responsive briefs, limited to 5 pages, may be filed no later than August 21, 2002.
6. Counsel for any of the Appellants may move for permission to file a supplemental brief on any of the issues listed or on any other issue peculiar to their client's case. Any such motion shall explain why supplemental briefing is required and shall be filed no later than September 27, 2002.
DATED this ___ day of July, 2002.
STANLEY G. FELDMAN Duty Justice