By A.J. FLICK
For the first time in Pima County, a jury will decide if a killer is eligible for a stiffer term in a non-death penalty case.
Judge Howard Fell ruled Tuesday that before John Edward Sanders can be sentenced for the July 2000 rape and murder of Irene Johnson, 88, prosecutors must prove to a jury that factors exist that warrant the stiffer sentence.
Sanders faces life in prison without parole or life with the possibility of parole after 25 years. He was convicted June 11.
Last month, the U.S. Supreme Court ruled that aggravating factors must be proved to juries before prosecutors seek maximum terms.
Previously, aggravating factors had to be proved to a jury only in cases where the death penalty was sought.
Fell ruled in November 2003 that Sanders is retarded, which in Arizona means he cannot be sentenced to death.
Deputy County Attorney Elizabeth Hurley had argued that the Supreme Court ruling did not apply to Sanders, an argument Fell rejected.
Defense attorney Harold Higgins argued that under the new ruling, Fell could not hand down a sentence of life without parole unless a jury ruled there were aggravating factors, and that only the same jury that decided guilt could rule on aggravating factors.
But Fell ordered a new jury, saying this aggravation phase is similar to resentencings before juries that did not convict death-row inmates.
Prosecutors alleged in September 2000 that Johnson’s murder was especially heinous, cruel and/or depraved, an aggravating factor. Johnson’s age may also be an aggravating factor.
Prosecutors will be limited to those two aggravating factors in the sentencing trial, Fell said.
Attorneys and Fell will meet Aug. 2 to discuss a trial date and how to proceed.
Higgins and Hurley did not return calls seeking comment yesterday.
Sanders is scheduled for trial Oct. 12 in the unrelated rape of a 78-year-old woman in August 2000.