A fence surrounds the state prison in Florence, Ariz., where the botched execution of Joseph Rudolph Wood took place in 2014.

WASHINGTON — A federal appeals court on Tuesday ordered the re-sentencing of James McKinney, sentenced to death in Arizona in 1993, in a decision that several judges warned calls into question 15 years of death sentences handed down in the state.

The 9th Circuit Court of Appeals, sharply split on a 6-5 vote, granted McKinney's request that his death sentence — though not his underlying murder conviction — be tossed out unless the state re-sentences him under a constitutional system or imposes a lesser sentence than death "within a reasonable period."

The decision, written by Judge William Fletcher, was issued more than a year after the 11 judges heard arguments in McKinney's case.

As the five dissenting judges warn, however, the decision "calls into question every single death sentence imposed in Arizona between 1989 and 2005."

At issue is Arizona's "causal nexus" test, at use from from 1989 until 2005, in which evidence of a "difficult family background or mental disorder" only could be considered a mitigating factor — diminishing responsibility — during the sentencing phase of a death penalty trial "if it had a causal effect on the defendant’s behavior in the commission of the crime at issue."



Under prior U.S. Supreme Court cases, however, the person imposing a sentence cannot "refuse to consider, as a matter of law, any relevant mitigating evidence."

McKinney was convicted and sentenced to death for the 1991 murders of two people during the commission of armed robberies. The Arizona Supreme Court, reviewing his case, "accepted the factual conclusion of the trial judge that, as an evidentiary matter, there was no causal nexus between McKinney’s PTSD and his crimes."

In Tuesday's decision, the 9th Circuit held that, once the Arizona Supreme Court did so, it then "refused, as a matter of law, to treat his PTSD as a mitigating factor." Such a decision, Fletcher wrote, "was contrary to clearly established federal law as established" in the prior Supreme Court rulings. The "clearly established" holding was key to overcoming the hurdle for federal court intervention in a state's death sentences in the wake of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

As such, the court granted McKinney's requested relief.

The dissenting opinion from Judge Carlos Bea — joined by Judges Alex Kozinski, Ronald Gould, Richard Tallman, and Consuelo Callahan — takes aim at all parts of the majority decision, from how PTSD was considered at sentencing to the Arizona Supreme Court's use of the "causal nexus" test to the 9th Circuit's application of the standards for review of AEDPA to the implications for the state's death sentences.



Writing that "the majority wrongly smears the Arizona Supreme Court," Bea writes that the decision "calls into question every single death sentence imposed in Arizona between 1989 and 2005 and our cases which have denied habeas relief as to those sentences."

Nearly half of the 119 people currently on death row in Arizona were sentenced during the time the majority held that the "causal nexus" test was in use, although it was not immediately clear how many of those on death row had potential mitigating evidence ignored because of the test.



One of the lawyers who submitted a brief in the case on behalf of the federal public defenders echoed the dissent's notice of the potential effect of the ruling — but not as the warning the dissenting judges presented.

"This ruling provides guidance to courts reviewing claims presented by Arizona death-sentenced prisoners whose mitigation was not properly considered," Assistant Federal Public Defender Robin Konrad told BuzzFeed News.



Fletcher was joined in the majority decision by Chief Judge Sidney Thomas and Judges Kim McLane Wardlaw, Marsha Berzon, Morgan Christen, and Jacqueline Nguyen.

Because of the vast size of the 9th Circuit, Tuesday's decision was not a full en banc decision of the court. It was, instead, the result of the limited en banc procedure established in that 9th Circuit. Arizona officials could seek a full en banc review of the decision, ask the Supreme Court to review the decision, or accept the decision.

A request for comment was left with Gov. Doug Ducey's office.