Joe Clarence Smith was sentenced to death in 1977. After the Arizona Supreme Court set aside sentencing error, the court again imposed the death penalty. In 1999 the Ninth Circuit reversed the sentence on grounds of “ineffective counsel.” The majority of the judges on the panel used the familiar technique of second guessing counsel and imposing their own view of how to try the case-although none had ever been a trial judge. Due to Constititutional changes imposed by the Supreme Court, the defendant’s sentencing was delayed and he was sentenced to death again in 2004. Defendant pertioned for certiorari in 2007- thirty years after his original sentence. The Supreme Court denied cert. except for Justice Breyer who in dissent thought the delay (caused by the courts ) was “unusual” and he wondered if it is “cruel” to keep an individual for decades on death row.” He mused that the delay might raise a “serious constitutional question.”