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LIVE FROM THE HEADLINES

Interview With Arizona Attorney General

Aired September 2, 2003 - 20:08   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

PAULA ZAHN, CNN ANCHOR: And we're going to go on to a dramatic other court ruling today. A federal appeals court overturned over 111 death sentences imposed by judges in Arizona and two other Western states. The 9th Circuit Appeals Court in San Francisco cited a recent Supreme Court ruling that only juries can impose the death penalty.
The court voted 8-3 that inmates sent to death row by judges prior to the Supreme Court ruling should have the chance to have their sentences commuted to life in prison. One legal expert praised the decision.

(BEGIN VIDEO CLIP)

ERWIN CHEMERINSKY, UNIVERSITY OF SOUTHERN CALIFORNIA: I think today's decision by the 9th Circuit is very desirable in carrying out what the Supreme Court said. Before a person can be put to death, a jury, and not just the judge, should find the death sentence appropriate.

Somebody shouldn't be executed by the accident of timing, that they're tried before June of 2002, rather than after June of 2002. That's why the court of appeals today said the Supreme Court decision applies retroactively to those who were convicted and sentenced before the Supreme Court decision in June of 2002.

(END VIDEO CLIP)

ZAHN: Arizona Attorney General Terry Goddard joins us from Phoenix for this exclusive interview.

Welcome. Thank you so much for joining us, sir.

TERRY GODDARD, ARIZONA ATTORNEY GENERAL: Thank you.

ZAHN: First of all, how many people does this affect in your state, how many people on death row?

GODDARD: We have 89 defendants that are affected by this decision.

ZAHN: And what does this mean to them?

GODDARD: Well, what it means is a little different from what I've heard so far in the story.

What it means specifically is that, if this decision is affirmed by the United States Supreme Court -- and my office will be filing a petition for certiorari probably tomorrow to ask the Supreme Court to review the 9th Circuit decision. Four circuits have acted on this particular question. Three of them have decided that the Ring case would not be retroactive to inmates on death row who had exhausted all their appeals, which is the case of these 89.

If it is affirmed, then, as the past speaker just said, it would go to a jury to determine what the appropriate sentence was.

ZAHN: The juror -- excuse me, the judges referred back to a 2002 Supreme Court ruling forbidding judges from handing down death sentences.

And we're going to read a very small part of that, where Judge Sidney Thomas said this: "By deciding that judges are not constitutionally permitted to decide whether defendants are eligible for the death penalty, the Supreme Court altered the fundamental bedrock principles applicable to capital murder trials."

Let's be very clear that, since that ruling, Arizona has had only juries handing down death sentences, right?

GODDARD: That's absolutely true. Our legislature immediately changed the law. And all subsequent cases have been decided by juries. In other words, the aggravating and mitigating circumstances which might lead to a death penalty imposition were jury-imposed.

So, going forward, we feel that we're on solid constitutional grounds. There was also a question for those defendants who had cases working through the appellate system. Those are being decided on a case-by-case basis as to whether or not it would also apply to them. Then there were the 89 which the 9th Circuit spoke of today.

ZAHN: I guess it's kind of difficult to predict where this is all going. But if you were to make a short-term guess about the impact on prison and prison life, what do you think we're looking at here?

GODDARD: Well, the short-term situation is, wait and see, wait and see what the Supreme Court is going to do with a dramatic division among the circuits in this country.

Also, several state Supreme Courts have weighed in, all saying that this is not a bedrock principle, this is a procedural issue and, therefore, it should not be applied retroactively.

ZAHN: Attorney General Terry Goddard, thank you so much for joining us tonight. We appreciate your perspective.

GODDARD: Thank you.

ZAHN: And we have two guests now to discuss today's death penalty rulings and some of the other court cases making news, CNN legal analyst Jeffrey Toobin, with me here in New York. And former prosecutor Wendy Murphy is in Watertown, Massachusetts.

Good to see both of you. First of all, Wendy, your reaction to what came down in those three states today.

WENDY MURPHY, FORMER PROSECUTOR: Well the 9th Circuit actually has such a remarkable history of going out on a limb and being very liberal, especially on criminal matters. I guess I'm not surprised that it was the 9th Circuit that went this way.

As the attorney general said, some of the other federal circuit courts have gone exactly in the opposite direction. But what's interesting here is that we're talking about the backward-in-time application of a Supreme Court decision. And that's a very rare thing to see in law, because, generally speaking, the law, when it becomes new, when a new rule is announced, as was true for the Supreme Court in 2002 in the Ring case, it is prospective only. I mean, and that's what makes law predictable and stable.

We say, we've changed our mind about some rule and we want to apply that henceforth. It's very different to apply these things backward in time. And I actually agree with the attorney general that, if the Supreme Court does grant review in this case, they'll probably reverse the 9th Circuit, because I think that the decision to allow only juries and not judges to grant death sentences is a procedural one, not a substantive one. That's what I expect.

JEFFREY TOOBIN, CNN LEGAL ANALYST: I'm actually going to disagree with Wendy on that one.

I think this is such a sort of specific ruling here, when you think, if you were sentenced on one day, clearly, your sentence was -- you would be overturned. But two days later -- two days earlier, I'm sorry, the sentence would be upheld. I just think it's such a dramatic difference whether you were sentenced by a judge or a jury now that they've got to make it just one rule. And I don't think they're going to just let people executed who were sentenced by judges, because that clearly is just unconstitutional now.

ZAHN: I want to move both of you on to the case of South Dakota Representative Bill Janklow. He made his first court appearance today.

Let's talk a little bit, Jeffrey, about the charges he's facing right now.

TOOBIN: Manslaughter, a felony case. This is really more of a political issue than a legal issue. He can clearly be serving in Congress while he is facing these charges. Kobe Bryant, after all, was doing his job while he is facing criminal charges.

(CROSSTALK)

ZAHN: He's accused of what, running a stop sign at 70 miles an hour and killing a motorcyclist, killing him?

TOOBIN: Killing a motorcyclist, after a history of sort of joking about the fact that he has a lead foot, that he's been speeding a lot.

ZAHN: Not only joking about having a lead foot, Wendy.

Let's play for our audience now a small part of a campaign commercial that he actually used when he was running for governor.

Let's listen.

All right, well, I guess I'll just have to characterize for you what it says. Bill Janklow speeds when he drives, shouldn't, but he does. When he gets a ticket, he pays it.

Is that going to hurt him, Wendy, in court? Is that something that can be used?

MURPHY: Well, it remains to be seen whether his driving history will be used against him. If you have a long history of doing a lot of bad things on the road, on the one hand, it's very probative. If it shows a kind of pattern of conduct or habit, then you probably did it on the night in question.

On the other hand, it's very prejudicial, because jurors sometimes say, we don't even care if you're guilty with regard to this case. We don't like you. We think you're a bad driver. And we're just going to get you off the road or find you guilty, because we think you're a bad person or a bad driver.

I actually have to disagree with Jeffrey, that I think this is purely a political issue, or that really the truth is to be told in the criminal justice system and that he can ride this out. The decision in terms of whether he deserves to serve in public office won't be decided by a jury in the criminal case. His constituents have the right to judge him right now as to whether he's fit to represent them in Congress.

And, frankly, a person like this who jokes about bad driving and then kills a person? If I were his constituent, I would want him out and I would try to take some steps to cause that to happen. And I don't care what the criminal

(CROSSTALK)

TOOBIN: I think I wasn't clear. I'm actually agreeing with Wendy about that.

I think you're right. It's a tough legal issue. Is this admissible or not in a court case? You can bet it's admissible in politics, the fact that he has this long history and he's joked about it. I don't think see how he can survive that.

MURPHY: That's right.

ZAHN: Finally, John Hinckley Jr., should he be allowed to have unsupervised visits with his parents?

TOOBIN: He's actually gotten more and more freedom. He's got a good record. It's hard for me to see how the court is going to turn him down, after not violating all these rules that he's been forced to abide by.

ZAHN: Jeffrey Toobin, Wendy Murphy, thanks for covering so much territory for us this evening.

MURPHY: Thank you, Paula.

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