Stranger than Fiction

Because of the bizarre nature of this case, it is one of my all time favs.
What do you get when you combine a dope-smoking judge, a romantic interlude between a prosecutor and defense counsel, a “psychic tip” which leads police to the murderer, and a “functionally retarded” defendant with explosive personality disorder?
 
If you guessed a story so strange that not even a crack team of soap opera writers could dream up, you win the prize. If Brenna Bailey hadn’t died, the saga of Warren Summerlin would almost be funny.
 
The best place to start with this odyssey (that we will not call a long, strange trip) is at the beginning.
 
Brenna was a skip-tracer and bill collector for Finance America in Phoenix, Arizona. On a fine spring morning in 1981, Brenna decided to do some face-to-face collecting of some delinquent accounts, including one belonging to Summerlin’s wife. She set out on April 29 to visit her clients and after making a couple of stops, she disappeared.
 
Her boyfriend at the time, Marvin Rigsby, started doing some skip-tracing of his own after he was unable to get in touch with her and he learned that she had not returned to work as she had planned. He got the list of places Brenna planned to visit and started to investigate. Retracing her route, he spoke with Summerlin on the evening of the 29th, and was told that Brenna had been there, but left about 10:30 a.m. The woman who was next on the list of persons to be visited claimed Brenna never showed up. She had been home all day and had received no visitors.
 
Rigsby went to the police, who had also received a tip on their anonymous tip-line from someone who claimed that “the missing woman from Pacific Finance Company” had been murdered by Summerlin and her body rolled up in a carpet. The caller turned out to be Summerlin’s mother-in-law, who told authorities that her daughter “had ESP” and had sensed the crime.
 
Brenna’s car was discovered the next morning not far from the Summerlin residence by a paving crew that was attracted (or repelled) by a smell emanating from the trunk. The crew alerted a nearby store manager, who recognized the stench of decaying flesh and called police.
 
In the back of the car, police found women’s underwear, nylons, and shoes. Forcing open the trunk, the investigators found Brenna Bailey’s partially nude, bloody body, wrapped in a bedsheet. Her skull was crushed.
 
When the police showed up at Summerlin’s home with a search warrant, his first response to them was “I didn’t kill nobody.” He then asked, “Is this in reference to the girl that was at my house?”
 
“What girl?” the officer asked.
 
Summerlin described Brenna Bailey.
 
A search of the residence found numerous pieces of incriminating evidence and Summerlin’s wife identified the bedsheet found with the victim as one coming from the home. What role her real or imagined ESP had played in the tip was never explored and Mrs. Summerlin was not charged with any wrongdoing. When Summerlin was arrested, he asked to speak to his wife. In the presence of police, he made several incriminating statements.
 
So far, the case of Warren Summerlin was shaping up to be a simple, tragic and regrettably run-of-the-mill murder case. The evidence was all good and conclusive, the searches were legal, he had been Mirandized appropriately and treated well in custody. Law enforcement had done its job well, but the criminal justice system was about to have its way with Warren Summerlin.
 
Indicted on capital murder charges, Summerlin was assigned a lawyer from the capital crimes section of the state public defender’s office. After a couple of meetings with his client, the attorney requested a mental competency evaluation, which was scheduled. Summerlin’s first attorney subsequently left the public defender’s office, and another public defender was assigned.
 
In the summer of 1981, two psychiatrists examined Summerlin and found that he had suffered a brutal and cruel childhood, suffered from dyslexia and had dropped out of school in the 7th grade, but under the M’Naughten standard which determined a defendant’s legal sanity, Summerlin was sane when he allgedly committed the offense and reported that he was competent to stand trial.
 
As an aside, the psychiatrists found that Summerlin’s alcoholic mother beat him frequently and punished him by locking him in a room with ammonia fumes. At his mother’s behest, he received electroshock treatments to control his explosive temper. He grew up without a male role model after his father, a convicted armed robber, was killed in a shoot out with police. An electroencephalogram showed some dysfunctional processing in Summerlin’s posterior temporal area, but was not found to be sufficient to cause either epilepsy or temporal lobe seizure.
 
Psychological testing found that Summerlin was “deeply emotionally and mentally disturbed, unaware of the motives underlying much of his behavior, and unable, because of his problems, to exercise normal restraint and control once his highly unstable and volatile emotions are aroused.”
 
His formal diagnosis was organic brain impairment with borderline personality disorder, and paranoid personality disorder. Again, that’s not enough to support an insanity defense. A Maricopa County Superior Court Judge formally found Summerlin competent to stand trial in November 1981.
 
The open-and-shut case with a defendant who had a boat-load of mitigating factors was a lose-lose proposition for both the State of Arizona and the public defender. There was almost no chance Summerlin was going to beat the rap, but there was a good chance that under the sentencing scheme then in place in Arizona, a judge would find the mitigating factors outweighed the aggravating ones and Summerlin would not be sentenced to death.
 
Starting from the solid premise that the case did not warrant the extra time and expense connected to a capital case, the two sides started negotiating a plea.
 
On November 17, 1981, the prosecutor, whom appellate court records name only as “John Doe” and the defense attorney, known as “Jane Roe” reached a deal that would have Summerlin plead no contest to second-degree murder and aggravated assault, with 21-year term for Brenna Bailey’s murder, and a maximum 15-year term for an unrelated road rage incident which led to the aggravated assault charge. The sentences would be served concurrently and Summerlin would be required to serve at least 14 years.
 
The final approval, of course, was not Summerlin’s but the judge’s, and the deal allowed him to reject the stipulated sentence. Prosecutor Doe did not believe that Summerlin’s case was a capital offense, so even if the judge rejected the sentencing stipulation, the most Summerlin could have gotten was 38-and-a-half years.
 
Compared to a trip to the electric chair, Summerlin, functionally retarded or not, should have taken the deal and run. At first, he did so. He took the Alford (no contest) plea, but a few days later — he had not yet been sentenced — he filed a pro se motion to withdraw the plea and asked to fire his public defender.
 
On December 15, 1981, the judge in the case denied Summerlin’s motion, but advised him at that time that he was seriously looking at not accepting the stipulated sentence as recommended by the State. If the judge did deviate from the plea agreement, Summerlin could at that point withdraw the guilty plea and go to trial.
 
Defense attorney Roe, fearing that the judge was going to reject the sweetheart deal, and would push Summerlin into going to trial where they would recommend a death sentence, quickly moved to have the case transferred from that judge because of prejudice against her client. The senior judge in the Maricopa County Superior Court declined to do at a hearing on December 18.
 
All of this intense work together to wrap up Summerlin’s case overflowed into a boozy Christmas party romantic pas de deux between Doe and Roe the night the presiding judge declined to remove Summerlin’s judge.
 
The next morning, Roe went to her boss, ‘fessed up and said she could no longer ethically represent Mr. Summerlin. For reasons that will be made plain, Mr. Doe did not go to his boss. Ms. Roe would later testify that because of the circumstances, “it would be appropriate for another public defender to handle the case and take it to trial, since it looked like it might be a trial at that point.”
 
The public defender supervisor decided that the entire office might have been compromised and thus Summerlin would have to have special counsel appointed.
 
However, neither Roe nor Doe took any steps to remove themselves from the case, and it must have been a pretty awkward hearing before Judge Derickson on December 22, 1981. After a lengthy hearing, the judge accepted Summerlin’s request to withdraw the guilty plea.
 
On December 28, 1981, Roe and Doe met to discuss the situation. Roe was planning to withdraw, but she wanted Doe to remain on the case because he didn’t feel the case was a capital crime and was in favor of a lesser plea. They arranged for a hearing before the trial judge who held a private meeting with counsel and then in public appointed private attorney George Klink to represent Summerlin at his trial.
 
The dalliance between attorneys probably merited them a penalty from the Bar Association, but it had little impact on his case once the judge rejected the plea deal and new lawyers were brought in. The fate of their relationship remains one of the unexplored mysteries of their case. The hook-up would feature prominently in appeals, however.
 
The case was set for trial before Judge Philip Marquardt. A little more than a month later, the Arizona Attorney General’s Office assumed responsibility for prosecuting the case, and indicated that it was not going to accept any plea offers.
 
Klink met with Summerlin’s former counsel regarding his client’s psychiatric profile, but when it was clear that an insanity defense would not apply, he did not pursue this avenue further. The case went to trial, with Klink offering the theory that there was no premeditation involved. When the prosecution presented witnesses who provided evidence that Bailey had been raped by his client, Klink, on cross-examination, tried to refute the lack of rape evidence to bolster his position of no premeditation.
 
Without premeditation, there was no capital crime and Summerlin would not be executed. The case against the man was strong enough to leave just that single option.
 
The state did not present any psychological or psychiatric evidence, which limited Klink’s ability to bring up Summerlin’s background and emotional disability. In the end, the evidence was simply overwhelming and the jury came back with a guilty verdict on capital murder. Judge Marquardt set the matter for a sentencing hearing the following month.
 
At that time, in Arizona, the judge, not a jury, determined whether there were enough aggravating factors to merit the death penalty.
 
In the month between the verdict and the hearing, Klink’s representation bordered on ineffective. He did not meet with his client, nor did he meet with any of the psych experts that the Attorney General was planning to call.
 
During the sentencing hearing Klink did not introduce Summerlin’s side of the aggravated assault conviction. In that case, Summerlin’s wife had been struck by a car that left the road and he reacted by pulling a knife on the driver. The driver was not hurt, but simply pulling a weapon constituted aggravated assault. The conviction was used as an aggravating factor.
 
In addition, Klink provided no evidence of Summerlin’s horrendous childhood.
 
Judge Marquardt heard the state’s case on July 8, 1982. It was an extremely short hearing, after which Klink called a psychologist to the stand and prepared to question him. Summerlin objected to this, and Judge Marquardt called a recess. When court resumed, Klink rested without asking any questions. The judge then advised the parties that he would rule on the standard motion for a new trial and hand down his sentence on Monday.
 
However, Marquardt was a heavy marijuana user at the time, and would later admit that he was addicted to pot. His addiction had had an effect on the trial proceedings, a federal court later found.
 
“There are instances during pre-trial and at trial when Judge Marquardt exhibited confusion over facts that had just been presented to him,” the Ninth Circuit Court of Appeals wrote in one of Summerlin’s subsequent appeals. “He also made some quite perplexing, if not unintelligible, statements at various times during the trial.”
 
On Monday, Judge Marquardt forgot about the new trial motion and went right to sentencing. At that hearing, Summerlin, the “functionally retarded” and emotionally disturbed murderer, appeared to be the only person in the courtroom who had a clue about procedure, or who at least was not high or daydreaming about last weekend.
 
Judge Marquardt asked Summerlin if there was any reason why sentence should not be handed down. Klink responded that he knew of no legal cause. Summerlin said that there was a pending motion to vacate the verdict still unresolved. Judge Marquardt took a 5-minute recess and came back to the bench, denied the motion to vacate and sentenced Summerlin to death.
 
It was Judge Marquardt’s second death sentence of the day (curiously, both victims were named Bailey), and there is some indication that the judge confused the facts of the two cases. The other death sentence handed down that day was overturned on appeal because Judge Marquardt had allowed an unethical plea deal.
 
Summerlin appealed his sentence, and the Arizona courts upheld the conviction and sentence on appeal. He filed for habeas corpus relief in the federal courts and an entire course on appellate law could be taught based on Summerlin’s trips up and down the federal courthouse steps.
 
Suffice to say that on October 17, 2005, twenty-four years after Brenna Bailey was murdered, ten years after Summerlin might have been released had he accepted the plea deal (and two-thirds of the way through the maximum sentence that deal could have brought), the Ninth Circuit Court of Appeals granted Summerlin’s petition for a writ of habeas corpus and ordered a new sentencing hearing.
 
Judge Sidney R. Thomas summed up the court’s feelings about the case: “Extraordinary plotlines rarely end; they frequently reappear in sequels; thus this case returns to us from the Supreme Court to write the next chapter in this unusual saga.”