The issues arose in the case of Timothy Dunlap, who is sentenced to death in both Idaho and Ohio for two murders committed during a 10-day span in 1991.
Dunlap was arrested in Idaho after prosecutors said he used a sawed-off shotgun to kill 25-year-old bank teller Tonya Crane during a robbery in Soda Springs. After his arrest, police said he confessed to murdering his girlfriend, Belinda Bolanos, with a crossbow and dumping her body along the Ohio River 10 days before Crane's murder.
Dunlap was convicted in Ohio and sentenced to death there for Bolanos' murder; but because he was convicted in Idaho first, Idaho is first in line for his execution.
It's not uncommon for death row inmates to appeal multiple issues before multiple courts, all at the same time. Now 44, Dunlap is no exception, and his appeal before the Idaho Supreme Court includes more than 50 different issues.
The decision from the Idaho Supreme Court on what must be reviewed could dramatically limit the types of appeals that death row defendants can bring.
The Idaho Legislature created the mandatory review law in 1977, requiring the Idaho Supreme Court to review every death sentence whether the defendant wants them to or not.
The law was designed to do two things: First, meet federal requirements that the death penalty be imposed only on a narrow group of criminals whose crimes were worthy of such a severe sanction; and second, speed up the appeals process by ensuring there were no problems with the way the death penalty was imposed.
But Idaho Deputy Attorney General LaMont Anderson says the law has actually slowed death row cases because the Idaho Supreme Court has never defined the scope of the mandatory review.
That means that once the mandatory review is done, the federal appeals court assumes the Idaho Supreme Court justices have considered all the sentencing issues in a case, even if a particular issue was never mentioned before the lower court. Many types of appeals can't be brought before the federal courts until they've been considered by a state court, but since the federal courts have interpreted Idaho's mandatory review law as all-encompassing, virtually no sentencing appeal is off limits, Anderson contends.
But Shannon Romero, Dunlap's defense attorney with the state's appellate public defender's office, maintains that the Idaho Supreme Court has implemented the mandatory review rule correctly. The Idaho Supreme Court has an obligation to make sure that the death penalty is being carried out in a way that's constitutional, and that means considering everything, Romero contends.
The Idaho Attorney General's office wants to treat death penalty cases like any other criminal case, and that's just not right, she told the court.
The U.S. Supreme Court "has long recognized that death is different from every form of punishment," Romero wrote in a brief to the court, in large part because it is totally irrevocable.
The justices took the matter under advisement and didn't say when they would issue a decision.
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