June 1, 2009
SCOTUS completely its capital case error-correction in Bobby v. Bies
As documented by the fact that not a single amicus brief was filed in the capital case Bobby v. Bies (08-598), it seemed that the Supreme Court took up the case merely to correct what it perceived to be an erroneous reversal of a death sentence by the Sixth Circuit. As detailed in this SCOTUSblog post, this stark example of capital case error correction was completed by the Justices this morning:
The Court has released the opinion in Bobby v. Bies (08-598), on double jeopardy protections in post-conviction hearings on an inmate’s mental competency. The decision below, which held for the capital defendant, is reversed and remanded in a unanimous opinion by Justice Ginsburg, available here.
When I get a chance to review the opinion, I may have more to say about the Court's work and its initial decision to take up the case. In the meantime, here are links to my prior coverage for those who might want to get a running start on the commentary:
- Supreme Court takes up intriguing capital case involving mental retardation
- Early report on Bies oral argument
- The little SCOTUS capital case that could...?
- What's up with all the SCOTUS capital case cert grants from the Sixth Circuit?
UPDATE: The title of this post at C&C about the ruling here perfectly capture the tone of the opinion: "Smackdown." Indeed, though the outcome was not at all surprising in light of what happened at oral argument, the lashing given to the Sixth Circuit's panel work was. At Volokh, Orin Kerr has these fitting comments:
The Sixth Circuit denied rehearing en banc,with the author of the original panel opinion stating that the original opinion was not only correct, but that it was "an easy case." Judge Sutton disagreed, authoring what I thought was a strong dissent from denial of rehearing en banc. Today the Supreme Court reversed in a unanimous opinion authored by Justice Ginsburg. Justice Ginsburg's decision is unusually brief for an RBG opinion, and the four-page analysis section cites Judge Sutton's dissent four times.
June 1, 2009 at 10:30 AM | Permalink
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Having read the opinion I think the Court got this case right. And far from being a case of isolated error correction I think they took it to preclude a deluge of similar litigation. Given that Bies was convicted in the early 90s I would think there would be a large number of cases that were tried under pre-Atkins frameworks. Deciding this case reenforces the SCOTUS desire that the states get the first crack at applying Atkins to convicts.
It also won't surprise me if Bies does not meet the Atkins threshold, given that he was apparently well adapted to his pre-conviction life, regardless of IQ test results. I agree with Daniel's oft repeated statement that IQ isn't all that meaningful, but the Atkins test does not turn on IQ as I understand it (Atkins that is, not IQ).
Posted by: Soronel Haetir | Jun 1, 2009 11:20:41 AM
I think the Court took up the case for two reasons--(1) the Sixth Circuit was so obviously wrong and (2) they got to make some pretty clear statements about issue preclusion.
Posted by: federalist | Jun 1, 2009 11:36:53 AM
Doug, can I say that Judge Clay (author of the panel opinion and an opinion concurring in denial of en banc review) is a hack given the smackdown here?
Posted by: federalist | Jun 1, 2009 12:40:48 PM
Federalist, not every judge that is reversed unanimously is a hack.
Posted by: Marc Shepherd | Jun 1, 2009 1:35:12 PM
No, but judges who don't get basic concepts like preclusion not applying to judgment winners are. And Clay is a hack.
Posted by: federalist | Jun 1, 2009 1:45:10 PM
Is "hack" just a code-word for "author of any opinion I disagree with"?
Posted by: Marc Shepherd | Jun 1, 2009 4:55:29 PM
What a waste of time and money. The Ohio courts have already determined that Bies is "mildly to borderline retarded," has a "chronic and severe personality disorder," and has "probable organic brain dysfunction." Now, the Ohio courts get to decide whether Bies is insuffiently retarded to put to death -- what a win for federalism. After much expenditure of money and time, and after incredible stress on the victim's family and Bies' family, he will probably not be executed. And if he is executed, the Rule of Law will take a big hit (we said he was retarded when we thought it didn't matter, but when we found out that it mattered we said he wasn't retarded). This is not a win for the Constitution or our legal system at all. The Ohio AG's decision to fight the district court decision in this case is governmental waste at its finest.
Talk of "smackdowns" and "hacks" in a case like this shows a third-grader's mentality at best.
Posted by: Mark Pickrell | Jun 1, 2009 5:02:37 PM
Back to the substance:
What's the BEST prior case holding that "issue preclusion is only available to a prevailing party"?
Posted by: Mark Pickrell | Jun 1, 2009 6:21:22 PM
Mark is correct.
Also, as capital case error-correction goes, the Supreme Court's intervention in this case is mind-bending considering all the capital cases the Fifth Circuit monumentally (and clearly) screws up that the Supreme Court refuses to correct and which routinely result in unconstitutional executions being carried out in the South (often of racial minorities).
Posted by: DK | Jun 1, 2009 10:06:58 PM
Doug, here is a comment on Bies coming at the opinion from the oblique angle that it strikes me as a "reverse Apprendi" decision. That is, the animating principle which underlies Apprendi, that the def didn't know at the time he went to trial what the sentencing consequences of a conviction could be, can also benefit the State if it doesn't know at the time of the prior sentencing hearing what the consequence of the MR determination was. 1n 1992 MR was a mitigator, post Atkins it is a bar.
So, Ginsburg says, correctly, "...prosecutors, pre Atkins, had little incentive to vigorously contest evidence of retardation." A unanimous court gives the State a single "full and fair opportunity to contest his (MR) plea under the post sentencing precedents in Atkins and Lott."
Not a surprising decision and, as a practitioner, one that I think will carry wide significance as we deal with the effects of the change in the nature of mental retardation pre atkins and post atkins. As a matter of fact, I think I'll cite Bies tomorrow in a case I'm trying to settle.
So, I don't see this as simply an error correction case , from the perspective of someone in the trenches.
Posted by: bruce cunningham | Jun 1, 2009 10:45:49 PM
So, Ginsburg says, correctly, "...prosecutors, pre Atkins, had little incentive to vigorously contest evidence of retardation."
The problem I have with this line of argument is that it implies that somehow or another the truth is not incentive enough. It implies that prosecutors seek the truth when it is convenient for them to do so and ignore the truth when it is not. That is not a standard that brings out the best in the profession.
Posted by: Daniel | Jun 2, 2009 12:39:03 AM
"What a waste of time and money. The Ohio courts have already determined that Bies is "mildly to borderline retarded," has a "chronic and severe personality disorder," and has "probable organic brain dysfunction." Now, the Ohio courts get to decide whether Bies is insuffiently retarded to put to death -- what a win for federalism. After much expenditure of money and time, and after incredible stress on the victim's family and Bies' family, he will probably not be executed. And if he is executed, the Rule of Law will take a big hit (we said he was retarded when we thought it didn't matter, but when we found out that it mattered we said he wasn't retarded). This is not a win for the Constitution or our legal system at all. The Ohio AG's decision to fight the district court decision in this case is governmental waste at its finest."
It seems odd to blame the Ohio AG for wasting time and resources to correctly enforce the law, in spite of the inability of the federal courts to correctly interpret it. Your sarcasm notwithstanding, yes, this is a win for federalism, as it now gives the chance for the state courts - the entities properly required under Atkins to determine the issue of retardation - to , yes, determine the issue of retardation. As opposed to allowing the federal courts to interfere with the duty of the state courts to determine the issue, and decide for themselves whether or not Bies is retarded through a scurrilous use of issue preclusion. If you want to bemoan the waste of resources, then criticize defendant:
"Instead of “serial prosecutions by the government[,] this case involves serial efforts by the defendant to vacate his capital sentence.”"
Posted by: Buffalo Bill | Jun 2, 2009 2:27:23 PM
Mark P., I believe you could look to the test (cited by Judge Moron Clay) to get your answer. The determination that Bies was "retarded" was not necessary to the judgment.
At least Reinhardt is a bright guy. Not only did this nitwit Clay botch the opinion, he decided to double down on his stupidity with his concurrence. Hack.
Posted by: federalist | Jun 2, 2009 2:33:19 PM