under a new -- and legal -- scheme involving a jury.

Left out are 86 inmates who the court acknowledged also were sentenced to death by a judge, a procedure the justices concluded two years ago was unconstitutional.

In Coconino County, that includes Richard L. Bible, who was convicted of the June 1988 kidnapping and molestation of 9-year-old Yuma resident Jennifer Wilson, and Todd Lee Smith, who was convicted of the July 1995 brutal murder of an elderly Phoenix couple -- Clarence J. and Elaine Tannehill -- at the Ashurst Lake campground. Both were sentenced to death by judges.

Justice Antonin Scalia, writing for the majority in Thursday's decision, said that 2002 ruling does not mean the Summerlin -- or any of the other 85 inmates -- were denied their basic constitutional rights.

That logic drew fire from Justice Stephen Breyer. In the dissent he wrote for himself and three other members of the high court, Breyer said that the logic behind the original Supreme Court ruling -- that jury sentencing is required for fairness -- should apply to all in the interest of consistency.

At the heart of Thursday's decision is the 2002 U.S. Supreme Court ruling which concluded that all elements of a crime need to be decided by a jury.

That is critical in Arizona where simply killing someone does not subject someone to the ultimate penalty. Instead, there also has to be a finding of something else, such as the murder was committed for financial gain or that the victim was a peace officer.

But state law then in effect specified that once a jury finds someone guilty of homicide, the judge would determine if there are one or more "aggravating circumstances'' that merit the imposition of the death penalty -- a process the nation's high court found constitutionally flawed.

State lawmakers agreed two years ago to let juries decide whether someone is sentenced to life behind bars or death, bringing the law into compliance with the ruling.

Last year the state Supreme Court said about two dozen inmates whose convictions were still on appeal could petition for new sentencing. Since that time the high court has set aside many of the sentences of death imposed by judges, concluding that a jury presented with the same evidence might have reached a different conclusion.

But the state argued that those whose direct appeals had been exhausted were too late. These are people seeking "post conviction relief,'' usually in the form of some side attack on the process used to convict them such as ineffective assistance of counsel.

Scalia said the U.S. Supreme Court's 2002 decision was "procedural'' and therefore not retroactive. Anyway, Scalia said, there is no reason to believe that Summerlin or the others would have escaped the death sentence -- or that the procedure used to sentence them would have been fairer -- had they been sentenced by a jury.

"For every argument why juries are more accurate factfinders, there is another why they are less accurate,'' Scalia said. He said juries can be "confused over legal standards and to be influenced by emotion or philosophical predisposition.''

Scalia said Summerlin and the other inmates on death row got their Sixth Amendment right to a jury trial.

"But it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the State faithfully applied the Constitution as we understood it at the time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart,'' Scalia wrote

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