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McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)

By Shaun Martin

You see plenty of death penalty cases that take a long period of time. So, sure, the murder that gave rise to the death penalty at issue here took place in the 70s. That's right: The 70s. That's a long time ago, even when you consider that the death sentence wasn't imposed until 1981. We are still talking about 27 years just for the case to reach the Ninth Circuit. Again: That's a long, long time.

But not so weird that you haven't seen something like it before. But here's the wrinkle: the defendant who was sentenced to death here -- and whose death sentence is at issue before the Ninth Circuit -- is currently walking the streets. And has been since 2003.

And, no, we're not talking about someone who was released on the ground that he was actually innocent. Rather, he was released because there were serious questions about whether he was competent to stand trial (!), combined with the fact that after the district court granted a habeas petition and contemporaneously gave the state six months to retry the defendant, the Great State of Arizona forgot to ask for a stay (!!).

I haven't seen many death penalty cases in which the defendant has actually been released from prison while the appeal's pending. And I gotta say that the prospect that we would just pick up a guy who has been out walking the streets for five years, doing nothing wrong, and promptly kill him just seems, well, weird. I mean, sure, I get it; if you're sentenced to death, you're sentenced to death. But isn't it still a little strange.

Anyway, for better or worse, that's not going to be a problem here. Since the panel unanimously decides that, yep, the district court was right that the conviction and sentence can't stand. With McMurtrey getting not only Judge Pregerson (who writes the opinion) and Judge Willie Fletcher to sign on, but also Judge Bybee. Which tends to suggest that a reversal either en banc or by the Supreme's probably isn't in the cards.

Still, not the type of death penalty case you see every day.

Full post as published by California Appellate Report on August 22, 2008 (boomark / email).