Justices Hear Appeal Of Death Case That Could Set Precedent

Prosecutors say they'll have to retry many of the 202 prisonerson death row if justices throw out that type of indictment, whichdoesn't list reasons to justify a death sentence.

Attorney Steven Holley said some prosecutors already arehandling new death cases by listing the reasons, called aggravatingcircumstances, on the indictments presented to grand juries.

"This whole doomsday scenario that has been spun out by thedistrict attorneys seems a little improbable," said Holley, alawyer for death row prisoner Henry Lee Hunt. "It seems that whatthe state is asking this court to do is to diminish theeffectiveness of the grand jury.

"Capital defendants in this state have a constitutional rightto an indictment voted on by 12 grand jurors," Holley said, addingthat the extra protection makes sure charges aren't increasedduring trial.

Bill Hart, head of the appellate section of the state AttorneyGeneral's office, argued that the court has held short-formindictments legal in the past. The state believes "at most, itmight be a due process issue which this court has already addressedregarding short-form indictments," Hart said

Hart also said the defendant doesn't lack protection because hecan object at trial to anything a defense attorney believes isincorrect.

The grand jury issues charges based solely on evidence from aprosecutor and a trial jury hears evidence from both sides beforedetermining guilt or innocence.

Justices interrupted the arguments frequently with questions.

Justice Bob Edmunds asked if a grand jury must bedeath-qualified. The term means jurors have said they could votefor a death sentence if the facts supported it. Holley said hedidn't think it would be necessary but that it was an issue thecourt should address.

Despite state assertions that the high court had previouslyupheld the short indictment, Holley said it had been overlooked bycourts that a grand jury that hands down indictments should alsovote on aggravating circumstances. Now, only trial juries vote onthem.

Hunt, 58, was scheduled to die Jan. 24 for two 1984 killings inRobeson County, a murder for hire and the slaying of a witness. Thestate Supreme Court stopped his execution Jan. 22.

Since the state began using a short-form indictment in 1887,it's been routine to omit aggravating circumstances when adefendant is charged with capital murder.

By law, there are 11 aggravating circumstances - includingmurder during a rape or armed robbery and murder of a policeofficer. In the past, the court has said every defense lawyer knowswhat they are.

The Supreme Court said in its order that it was stopping Hunt'sexecution so it could consider defense arguments that were based ona U.S. Supreme Court decision in an Arizona case in June.

In Ring v. Arizona, the U.S. high court said Arizona juries -instead of a judge - should determine the aggravating circumstancesas well as the death sentence.

The circumstances are elements of the crime, but they have beentreated as sentencing guidelines, Holley said. Hart responded thatthe state Constitution doesn't say all elements of a crime must belisted in an indictment.

It's not clear when the Supreme Court will issue a decision -the justices typically take weeks or months to decide on a case.