Friday, October 02, 2009

Jones & Libberton v. Ryan (9th Cir. - Oct. 2, 2009)

There's never a good day to be on death row in Arizona. Especially on your very last day there.

Nonetheless, I'm confident there's a big celebration going on -- with whatever party supplies the prisoners have available -- in the cell blocks of Arizona's death row this morning. Because in two separate cases today, authored by two separate panels, in two different (wholly unrelated) death penalty cases, the Ninth Circuit unanimously reversed the Arizona district court and granted the defendant's habeas petition and vacated the defendant's death sentence.

Here's the reversal for Danny Jones, who killed Richard Weaver with a baseball bat and Weaver's seven-year old daughter with either the same bad or by smothering her, in Bullhead City in 1992, for ineffective assistance of counsel at the penalty phase. Here's the reversal for Laurence Libberton, who (alongside his confederates) beat and killed Juan Maya and threw him down a mine shaft in Salome in 1981, for the exact same reason.

Not to be a wet blanket, but I'd nonetheless advisse both Danny and Larry to keep things in perspective. They're both still subject to a new penalty phase, and given the facts of both cases, I'd be extremely surprised if Arizona didn't again attempt to sentence them to death -- probably successfully. Nonetheless, even that will buy them another eight years or so. Eight more years of life, plus a chance to actually live out your natural lifespan. You don't win that every day. Or have your neighbor win the same thing as well.

This assumes, of course, that the opinions stand. Jones had a very good draw (good for him, anyway, and bad for the Arizona Attorney General) and got three Democratic appointees: one from Carter (Betty Fletcher) and two from Clinton (Hawkins and Thomas). So there's at least the possibility of an en banc call, though I think he's probably got more to fear from a reactive Supreme Court -- perhaps assisted by a strongly-worded denial of en banc review -- than he does from the Ninth Circuit taking this one back up. The Supreme Court's not going to like the fact that he killed a seven-year old girl hiding under her parents' bed with a baseball bat after he killed her father with the same baseball bat in the garage. That's not good. It wouldn't be that hard for the Supremes to say: "I don't care how bad his attorney was. This guy was going to be sentenced to death anyway." So keep it mellow, Jones. You're still not in good shape. Wholly apart from the fact that even if you win you're still going to spend the rest of your life in prison, which is hardly a fun place.

Libberton's probably a little more secure. Though that's admittedly not saying much. But his draw was tougher. Like Jones, he drew a Judge Fletcher (though his was Willy). But he also had Judges Clifton and Milan Smith, both Bush II appointees, and won 'em both over. That tells you something. That, plus the better (i.e., not off-the-charts horrible) facts in his case, make it more likely that he's really got something to "celebrate."

It's one of those alleged "Ninth Circuit out-of-control liberal" days. Two killers get off death row. We'll then see how things go from here.