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November 20, 2002

Host: Michael Grant
Topics: Arizona Supreme Court oral arguments in the death penalty case of Timothy Ring;
How you can protect yourself from auto theft
In-Studio Guests:
Gary Lowenthal, Arizona State University College of Law professor;
Mikel Longman, Executive Director of of the Arizona Automobile Theft Authority

>> Jeanine: Tonight on "Horizon", we look at the state Supreme Court oral arguements in a pivotal case could that impact death sentencing cases in Arizona. Plus we are number one in auto theft. We look at why and how you can protect yourself. I'm Jeanine L'Ecuyer filling in tonight for Michael Grant. Right now 124 men and one woman sit on Arizona's death row. The lives of 28 of those inmates are balanced on the outcome of the case that is being considered right now by the Arizona state Supreme Court. At issue, a United States Supreme Court decision this year that declared the law under which those sentences were handed down unconstitutional. Yesterday oral arguments were heard in the case of state versus Timothy Ring. Merry Lucero has the story.

>> Merry Lucero: The state Supreme Court is considering oral arguments presented yesterday at the ASU college of law in the death penalty case of state versus Timothy Stewart ring. Ring was convicted by an Arizona jury in 1996 of murdering an armored car driver in the course of a robbery. In accordance with Arizona law, a judge considered the evidence and decided that Ring's crime warranted the death penalty.

>> It is the judgment and sentence of the court the defendant Timothy Stewart ring be sentenced to death.

>> Merry Lucero: But the U.S. Supreme Court ruled earlier this year that a jury, not a judge, must decide if a murder is serious enough to merit capital punishment. At issue now, appear jury has to determine the aggravating circumstances in ring's sentence and 28 others currently on death row. Assistant Attorney General Kent Cattani argued that a jury would have reached the same conclusion as the judge.

>> Kent Cattani: Ring requires that there be a jury finding on at least one aggravator. So if we can find it is obvious from the record that one aggravator has been established, we don't really have to have a new sentencing statute.

>> Merry Lucero: Arizona Supreme Court justice Stanley Feldman.

>> Stanley Feldman: See, in every one of these cases we are deciding what it is that a jury would have done, could have done or should have done. And as I understand you, you are telling us that in every case we are to look at it that way.

>> Merry Lucero: Defense attorney Andy Hurwitz argued that the death penalty cases should have new sentencing trials and the sentences must be remanded to life imprisonment.

>> Andy Hurwitz: In each of cases currently before the court a judge, not a jury, determined the existence of those aggravating circumstances. I would suggest to the court that in the aggregate these cases are controlled by this court's previous decision in ring and the Supreme Court's decision in ring. This court previously held that under state law the maximum sentence that could be imposed on the basis of the jury verdict alone was life imprisonment. The Supreme Court of the United States held that nothing the judge did after the jury came back could increase that sentence under the sixth amendment. So when you put those two decisions together, I would suggest to the court that this court's previous decision in ring and the Supreme Court's decision in ring dictate that each of these sentences must be vacated and reduce to do life imprisonment.

>> Merry Luecero: Also at issue, if they choose new sentencing, if using a new jury other than the trial jury to determine aggravating factors in these cases, would violate the double jeopardy clause.

>> Stanley Feldman: Double jeopardy does not just apply to retrial of someone who has been acquitted, but it also applies to situations in which a defendant has been deprived of his right to have the entire case adjudicated by the jury first chosen.

>> Andy Hurwitz: But here he was convicted the first time. It's not it's a better jury. I don't think he can possibly get a worse result than what he had the first time. I just don't think double jeopardy applies there.

>> Merry Lucero: The justices now go into conference to vote on the matter. 3 of 5 have to agree, one justice is assigned to write an opinion and it often take up to a couple of months before that opinion is published.

>> Jeanine: Joining me now to talk about some of the implication of the significant case Arizona State University college of law professor Gary Lowenthal. Thank you so much for being with us this evening. We have a tendency to refer to this as the Ring case but there's far more than one person affected by this.

>> Gary Lowenthal: Yeah. There are actually -- it's not clear whether there are 28 or 29. There started out to be 31 defendants that were consolidated in one proceeding before the state Supreme Court, and at least a couple of them have dropped out because of a collateral matters in their cases.

>> Jeanine: We tend to think of this as, in shorthand, a judge -- a jury now decides whether or not the death penalty is imposed. That's really not accurate?

>> Gary Lowenthal: No, it's not. Well, at least -- Arizona always had a system since the death penalty was reinstated in the 1970s which after a defendant would be found guilty of first-degree murder, if the state was seeking the death penalty, there would be a separate sentencing hearing in which the judge and judge alone would first make a determination of whether or not one of 10 aggravating circumstances, one or more of those circumstances, were present in the case. That was what was at stake in the Ring case. After the -- if the judge made that determination that there was at least one or more aggravating factors, the judge would then weigh that against any mitigating evidence the defense would present at the sentencing hearing and then make a decision as to whether or not the mitigation called for leniency in the case.

>> Jeanine: What is the significance and import of this particular case?

>>Gary Lowenthal: The U.S. Supreme Court -- over the last five years the U.S. Supreme Court first 4 justices then five justices and now seven justices have been increasing the role of juries in the sentencing process. If there are any facts that need to be found that would increase the sentence a defendant could otherwise receive, the defendant's sixth amendment right to a trial would apply to that fact finding. The defendant would have a right to have a jury make that determination, and that -- in the Ring case the U.S. Supreme Court held that the determination as to whether or not there were aggravating factors had to be presented to a jury in order for the statute to be constitutional and since it wasn't under the Arizona statute, the court declared the Arizona procedure unconstitutional.

>> Jeanine: So as the arguments were made yesterday, bring us up to that space then. What are we looking at now? What's the significance as we go forward from here?

>> Gary Lowenthal: At the time the Supreme Court rendered its decision in June of 2002, there were approximately 125 defendants on death row, and of those 125, something like 30 or 28 were on what was called direct appeal, in other words, their cases were still -- the initial proceeding was still ongoing. They had been convicted, the jury -- the judge had imposed the death sentence and they were still in the appeal process to the Arizona Supreme Court or the U.S. Supreme Court. The other close to 100 defendants had already completed that process, and were in collateral proceedings either in post-conviction proceedings in the state court or in federal habeas corpus proceedings.

>> Jeanine: And that means --

>> Gary Lowenthal: That means they get a second -- the federal court will look to see as a final arbiter as to whether or not any federal United States constitutional rights were violated. For example, a right to effective representation by counsel.

>> Jeanine: Kind of last set of arguments.

>> Gary Lowenthal: Exactly. Roughly 90 to 100 defendants were in that at that stage and they were on death row but not before the Arizona Supreme Court yesterday.

>> Jeanine: So as we go forward from this point, then, we are deciding whether or not these people will be executed.

>> Gary Lowenthal: That's right.

>> Jeanine: And playing into that was the Oregon arguments that we just saw a little piece of. For he those of us who don't do what you do and don't understand the significance of that, this is a very complex legal argument. Certainly we care about it because it has to do with the death sentence, but beyond that why is this so significant?

>> Gary Lowenthal: Well, it's significant for a number of reasons. It's significant because the lives of 130 people are at stake, number one. The victims in all of these cases as to whether or not they're going to have to be retried at least for the sentencing stage of those cases, the finality of the decisions that were already rendered, it's important to them as well. It's important to the administration of justice as to the proper allocation between a judge and a jury in making these incredibly important decisions. And it's also important because the legislature after the U.S. Supreme Court decision came down, the legislature pass add new death penalty statute in an emergency session this summer, and the new statute that the legislature passed went way beyond what the Supreme Court required them to do with regard to a jury role.

>> Jeanine: Let's go through that. There's a three-tiered process they go through as part of that legislation, is that correct?

>> Gary Lowenthal: Yes, there always has been. What you mean by three tier, the first determination is the defendant guilty of the crime, of first-degree murder. And defendants always had a right to a jury make that determination. That continues under the current legislation. If the defendant is found guilty of first-degree murder and the prosecution has filed notice before trial that they're seeking the death penalty, the same jury would then, in essence, be the decider of a second trial in which the state would have to prove whether or not there were sufficient aggravating circumstances beyond a reasonable doubt.

>> Jeanine: To warrant the death penalty?

>> Gary Lowenthal: To warrant the death penalty.

>> Jeanine: That's the key change?

>> Gary Lowenthal: That's correct. That's what was required by the U.S. Supreme Court. Then if the jury -- well, if the jury found that there were sufficient aggravating -- one or more aggravating circumstances beyond a reasonable doubt, there will be a third trial in which the jury then will hear evidence of other factors and aggravation, other mitigation the defendant wants to present and then would weigh and actually make the sentencing decision, the jury itself, rather than the judge making that decision. So it's a major change from what what was before.

>> Jeanine: Even in Arizona that's a significant change, because as I understood it, judges always imposed the sentence in the past, is that correct?

>>Gary Lowenthal: That's correct. Now it's a shift not only to have judges mak the finding of an aggravating factor but also to make the final weighing decision as to whether or not this particular defendant should spend the rest of his life in prison or get the death penalty.

>> Jeanine: When you say two new trials, which is basically what that sounds -- not new trials but two other you a trials in addition to the trial that finds a person guilty, it sounds like we're making it so complicated that it's more of a production. Is that necessarily true or are these developments that are similar to what we had existing already?

>> Gary Lowenthal: We don't know -- it's speculation on my part. It is a very complicated statute. For example, if the first jury that heard the defendant's guilt determined the defendant was guilty of first-degree murder and then was the jury in the second trial was hung, let's say they were hung 6-6 --

>> Jeanine: This would be the same jury or a different --

>> Gary Lowenthal: This would be the same jury. If they were hung, the court would dismiss that jury, they would then go through another jury selection process under the legislation that just passed the state legislature this summer and if that jury were able to reach a decision, let's say that there were one or more aggravating factors beyond a reasonable doubt, they would then go onto the third trial. If that jury was hung on the third trial, they would be dismissed and yet a third jury would hear all the evidence all over again as to whether or not the defendant deserved the death penalty. So it's a very complicated process. How it is going to play itself out in the courts is going to be worked out over a number of years. I there are major questions with regard to the statute that are unresolved at this point. Judges are having to make decisions as to how they're going to instruct the jury, not an easy task.

>> Jeanine: I wouldn't imagine under any circumstances.

>> Gary Lowenthal: For example, one of the aggravating factors under the statute is whether this particular homicide was especially heinous, cruel or depraved. Now, those are legally technical words that -- somewhat subjective ambiguous words that have meaning to lawyers but, well, what they mean to one juror might be very different to what they mean to another juror and judges have the difficult task of explaining those words in a coherent way to jurors and then have those jury instructions upheld through the appellate process in yet more appeals. So it is going to be a long process.

>> Jeanine: Long, drawn out -- it strikes me as cumbersome, being not an expert in this field, expensive.

>> Gary Lowenthal: It could be very expensive.

>> Jeanine: When we look at judges essentially -- well, this may be overstating it a bit, but giving up the right to make a decision as to whether a person will live or die, is there trepidation in putting that in the hands of a jury? Is there a feeling that that's the right or wrong thing to do?

>> Gary Lowenthal: Well, that's a tough question. I think it's an awesome responsibility no matter who has it, whether it's a judge or a jury. The founders of our government, the founding fathers, decided that they would like to leave that responsibility in the hands, in general, in criminal cases, in the hands of members of the community, and the U.S. Supreme Court has said that increasingly in sentencing that the community, the jury should be involved in that process, and that's what we're stuck with now.

>> Jeanine: Just one more question. Merry allude to do this in the package. We have a lot of steps to go before we have any ultimate decision. Can you kind of give us a quick lineout of how this works now that the oral arguments have been made?

>> Gary Lowenthal: Sometime in the next few months the Arizona Supreme Court will render a decision with regard to the 28 or 29 or 30 defendants who were consolidated in the case before the court today. It's my understanding that the court has now set oral argument in yet another case that will be heard in oral argument in December that affects the rights of the other 95 to 100 defendants who are on death row as to whether or not the Ring case will be applied retroactively to their case. That's yet another legal issue that has to be resolved, yes.

>> Jeanine: So we're looking at years.

>> Gary Lowenthal: Yes could be.

>> Jeanine: At least.

>> Gary Lowenthal: If I were a better, I would say we're looking at years.

>> Jeanine: Professor, thanks so much for making time for this tonight. It's a complex issue.

>>> Jeanine: It is a crime that doesn't warrant the death sentence but it is a felony offense that has grown to shocking proportions in the state. It's auto theft. In Arizona a vehicle is stolen every ten minutes and six seconds. That has been steadily on the rise. In 1999 there were 38,200 vehicles stolen here. In the year 2000, that figure went up to just more than 43,000. In 2001 it jumped to 52,200 vehicles stolen, making us number one in the nation for auto theft. In a moment we're going to take a look at some of the reasons why this is happening and some ways you can protect yourself from it, but first, last year Merry Lucero went along with one auto theft detective who spends his days reeling in auto thieves.

>> Right now I'm just patrolling the neighborhood here to see if anybody's left any stolen cars in the street.

>> Merry Lucero: He calls them his fishing holes. They are the streets, alleys and parking lots where DPS detective mark Herman knows the catch of the day will likely be a stolen vehicle. He looks for unfamiliar vehicles, broken locks and other signs.

>> Mark Herman:For example, we'll look for a car that has a punched out window or, for example, the vent window on this van next to us, if it's busted out and none of the other windows are, we'll take a closer look at it.

>> Merry Lucero: He runs the plate, but this one gets away. The vehicle has not been reported stolen. Herman is a member of the Arizona vehicle theft task force. The Arizona auto theft authority funds the task force through a $1 assessment for each auto insurance policy written in this state. The task force focuses on vehicle theft, investigation, prosecution and public awareness.

>> Mark Herman: Also, through proactive enforcement, by having the task force actively looking in the city for stolen cars and suspects, and then through prosecution, we have a county attorney who is funded pie the Arizona auto theft authority -- by the Arizona auto theft authority who does nothing but prosecute auto theft cases for us.

>> Merry Lucero: Herman also teaches other officers about auto theft.

>>Mark Herman: It's really rewarding when you have a class and then the very next day you teach a class you get a call from a police department, and that officer has recovered anywhere from one to as high as ten stolen cars the very next day after you've taught a class. Because before, they thought, man, I've never looked for some of the signs that a car is stolen before.

>> Merry Lucero: But the real reward is catching the criminals who steal the cars. After a couple of hours of patrolling, he finds a 2000 Jeep Cherokee with the telltale signs of a stolen car. Detectives Herman runs the plate. This time he's got one on the hook.

>> Mark Herman: The Jeep was reported on the 10th and we've had rain since then, and that car has been clean. Somebody has been driving it recently.

>> Merry Lucero: The Jeep had its back right side window punched out and the registration from another Cherokee in it. The neighbors aren't offering any information. The Jeep is tow to do an impound yard. With luck a suspect will be identified through the prints or personal property left in the vehicle. Many of the automobiles in this lot are theft recoveries. To avoid having your car end up here, auto theft experts say, awareness is the key. Registering the statewide watch your car program is one way the public can be proactive.

>> Mark Herman: They will send you back two stickers, one that goes on your front windshield that looks like this right above the public VIN number and this other one that goes on the back of window, to the rear of the vehicle. What it basically states is that you don't normally operate your car between the hours of 1:00 a.m. and 5:00 a.m. The police officer happens to see your car in operation at that time, you are giving him consent to pull over the driver in question about the legality of that person having your car. Merry Lucero: Antitheft devices are also recommended, and since one in five stolen cars have the keys in them, simply removing the keys from your car when you park it is a good way not to have your car be the bait for a car thief.

>> Jeanine: Joining me now from the Arizona Automobile Theft Authority is Executive Director of that organization Mikel Longman. Thank you so much for being here. In all the time that I have spent watching car thefts as a journalist over the years it just meant they went south of the border, got chopped up, and it was an annoying crime but not that big of a deal. It's changed, hasn't it?

>> Mikel Longman: Things have changed, and as you mentioned earlier, this is a crime that's just almost epidemic in the United States, Arizona and throughout the world. It's a big problem.

>> Jeanine: Is it because we're so close to Mexico in Arizona that we see it so much?

>>Mikel Longman: That's one of the issues. We have a 354 mile border with Mexico, we have seven official port of entries but we are within a six to eight hour driver of major sea ports in California. The national insurance crime bureau general -- every year they produce a report that indicates the highest theft areas and for the past years that I can recall, it's always a location either near a land border crossing or near a major seaport.

>> Jeanine: Now, these stolen cars, you were telling us before we went on the air, go to fund a whole lot more on the surface what think they may do.

>> Mikel Longman: Right. That's another emerging trend. Even back in 1990, law enforcement in Arizona was recovering about 79% of our stolen cars. That's still a bad problem because 29% weren't recovered. But last year in 2001, Arizona law enforcement only recovered 61%. So that translates, 39% of our stolen cars were not recovered.

>> Jeanine: Those are per capita figures. So, in other words, we have a lot more cars being stolen in raw numbers than ever before.

>> Mikel Longman: Absolutely. Arizona right now is the number one state per capita in vehicle thefts. We are number five in total number of vehicles stolen.

>> Jeanine: Where do those cars go? What kind of criminal activities does the money from those operations support?

>> Mikel Longman: Well, vehicles are stolen for a lot of reasons. Vehicles are stolen to facilitate other crimes. You know, if somebody is going to commit a crime, armed robbery, different things like that, they're not going to want to use a vehicle where they can be readily identified. We know the criminals periodically will steal a vehicle just for transportation. What we're really concerned are those economic crimes where people are stealing cars and there's some economic benefit. Those vehicles typically, they'll be stripped for their component parts, their component parts can be extremely valuable, particularly the older cars when the parts have not been manufactured for a while. We've heard some reports from the insurance industry that cars in the 10 to 15-year age sometimes can generate two to three times their actual value just because of the component parts. We know that some cars are stolen and the identities on those cars are changed, and then what happens is they're sold on a street corner to you or I as an unsuspecting buyer so you have almost dual victimization there, the original victim that had the car stolen, now I buy the car, most likely I contacted that person via a cell phone, pager or saw it on a street corner and now I go to the motor vehicle division to register the car and they determine it's stolen, the car will be seized. We know some cars are stolen and it's merely an insurance fraud. Somebody is upside down in their payments, over miles on a car.

>> Jeanine: So, whoops, my car got stolen?

>> Mikel Longman: Those we pursue pretty aggressively also. The other big thing you are mentioning, and that is cars being smuggled out of the United States because of our proximity with Mexico. We think a lot of them go to Mexico, but we know for a fact our cars are going to the some of the former Soviet Union countries, going to Asia, Central America, South America.

>> Jeanine: That's absolutely mind-boggling, you are talking about intact vehicles that are being shipped overseas and resold presumably.

>> Mikel Longman: That's correct.

>> Jeanine: How do they ship them? It can't be easy.

>> Mikel Longman: That's one of the things where it's fairly clear that you have organized criminal activity. You know, your typical street crook is not going to have the capability to --

>> Jeanine: The support systems.

>> Mikel Longman: And the market, wherever that vehicle is destined. So you know there's some organized criminal activity that's facilitating that type of a crime. But these large containers where you can put several cars in it and they go on the ship, and a lot of those ports -- I've been to ports in Miami, Vancouver, Canada, Long Beach, Los Angeles, I mean there's thousands and thousands of those containers. So it's virtually impossible to check every one of those.

>> Jeanine: Is if it says refrigerators on it, as far as those longshoremen consider it, it's probably a refrigerator.

>> Mikel Longman: That's right.

>> Jeanine: You mentioned a scary proposition that had to do with how some of the money generated is used.

>> Mikel Longman: That's something that I think a lot ofness law enforcement have suspected for a long time about the organized criminal activity, but recently we're hearing that vehicle theft and crimes related to vehicles, such as insurance fraud, staged accidents, that type of thing, are being used to fund terrorist type activities. The proceeds are huge. You know, in the United States, it's an $8.2 billion economic loss every year.

>> Jeanine: And the way we've defined organized crime has changed a little bit. We're -- where now terrorist cells, even street gangs, as I understand it, fit into that definition.

>> Mikel Longman: Of course.

>> Jeanine: We've talked a lot about what happens to your car. How do you keep the darn things? A lot of us would like to hang onto the car as long as we possibly can.

>> Mikel Longman: Sure. That's really important. I think one of the things we have to do is realize that most criminals are going to look for a crime of opportunity, particularly the folks that are going to do property crimes. And we've had the opportunity to talk to career criminals, and their favorite crime is -- stealing cars.

>> Jeanine: Is that because it's easy?

>> Mikel Longman: Yeah, it's pretty easy and the proceeds are pretty good, and one of the things they've told us is that, you know, people make it easy to steal their cars. Some really simple things, and the auto theft authority advocates kind of a layering approach where, number one, you lock the car, roll your windows up and take your keys. Sounds really simple, but --

>> Jeanine: But we don't do it.

>> Mikel Longman: No, we don't. That's a problem living in Arizona because it's hot during the summer, you want to leave the windows cracked. Lot of times you're going to run into a convenience store and you're going to leave the car running, think you will only be there a moment but you're making it easy for the crook.

>> Jeanine: Re quickly, the devices you put across the steering wheel, ask that make a difference? Are the crooks telling it does?

>>Mikel Longman: Absolutely. If they are going to steal a particular car, they are going to walk down a parking lot if they see one that's locked, a steering while locking device, they're going to walk right by it. It's up to us as vehicle owners to make our cars hard to steal. And there's some real great programs. If your viewers want to look at azwatchyourcar.com, that's our website. We have a lot of information as far as theft prevention, it talks about our agency and some of the programs we support.

>> Jeanine: Terrific. Thank you so much for being here tonight. We could talk all evening. To review a transcript of tonight's or any other night's "Horizon" program and to get information on upcoming shows, just go to www.kaet.asu.edu. I'm Jeanine L'Ecuyer in for Michael Grant. Have a great evening and a terrific tomorrow.