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April 27, 2009

Early report on Bies oral argument

As noted here, the Supreme Court this morning heard oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  This early AP report suggests I was right to predict that the Justices are likely to give Ohio another bite at the death penalty apple in this case:

The Supreme Court appears likely to give Ohio another chance to sentence a convicted killer to death, despite a previous finding that the man is mentally retarded. The high court heard oral arguments Monday in the case of Michael Bies, who was convicted of killing a 10-year-old boy in Cincinnati in 1992.

Several of the court's liberal justices seemed to agree with the state's argument that Bies never received a proper hearing on his mental state because he was sentenced years before the high court barred the execution of the mentally disabled.

The full oral argument transcript can be found at this link.

UPDATE:  The first sentence of Adam Liptak's report here in the New York Times about the Bies argument captures the tone and spirit of what transpired during oral argument:

It does not bode well for a death row inmate when his lawyer must spend the bulk of a Supreme Court argument fending off combative questions from two of the court’s most liberal justices.

April 27, 2009 at 04:57 PM | Permalink


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Naturally, this is an appalling and distressing total disregard for the safety of the public by horrible people, rent seeking, pro-lawyer job creation cult criminals hierarchy members. The Justices are disgusting in their lack of morality or human consideration.

The defendant is a street savvy thug, getting his way from age three, who could run rings around these Justices in any reality setting. Let's see if any of the genius buffoons in their Halloween outfits could lure a boy into a shed. These Justices are chumps for this murderer running his con.

Posted by: Supremacy Claus | Apr 27, 2009 6:57:07 PM

I fail to see as a matter of justice how the court can fail to uphold the 6th. This case is another example of the profound ignorance the court has when it comes to understanding psychology.

The problem I have as a psychologist with holding any other type of hearing on this man's psychological state is that it would be professionally unethical for any psychologist to testify at such a hearing. If the state were to introduce new evidence about the defendants current mental capacity, that data would have no bearing whatsoever as to a determination of the defendant's mental capacity at the time of the crime. Mental retardation, especially the kind that was diagnosed in this case, is not a stable construct. Mental capacity can and does change over time for a wide variety of reasons (such as Alzheimers) and this is doubly true of anything that deals with adaptive behaviors. Adaptation by definition is non-static. No ethical psychologist would be party to a hearing where the data they presented about the current mental capacity of a client would be used by another to judge the mental capacity of the client 10 years prior. It's sickening even to think about.

Since it would be unethical (not to mention contrary to justice) to present new data, it makes no sense to reopen a hearing. The only person who could possibly remark on the clients mental capacity at the time of the crime is Dr. Winter herself. But even here she would have nothing but her notes and her memory; attempting to apply post-Atkins standards to those old notes and distant memories would be an almost impossible task given, as Kent correctly notes, that the DSM "...requires careful consideration of all available information." I do not wish to say she cannot do such a thing but personally I would not do it; too much chance of post hoc ergo propter hoc. She did not evaluate her patient with an Atkins standard in mind and it's highly unlikely that she recorded enough data to allow her to fairly and justly apply that formula 10 years after the fact.

Justice Ginsburg: "I don't see how you get to elevate an intermediate determination -- there are many; some go for one party, some go for the other -- to become the outcome determinative factor."

I thought the lawyer blew it here. I would have responded: For the simple and practical reason that hearing the issue again cannot produce a new psychological fact that would change the outcome. Intermediacy is not the elevating factor; it's conclusiveness. There is no ethical psychological posture for undoing Dr. Winter's conclusion that the man was mentally retarded. The conclusive factor here is not the law, it's the psychological evaluation.

What I think the 6th was trying to get at, in its own bumbling way, was that the Double Jeopardy claim attaches not just to the Ohio court's determination of the defendant's mental retardation as a matter of law but as a matter of fact. Psychological evaluations must have finality. Otherwise it would be constitutionally permissible to reopen evaluations whenever anything either in the law or psychology changed. That's not only contrary to justice, it's contrary to the science of the mind.

Posted by: Daniel | Apr 27, 2009 8:18:34 PM

Daniel: The IQ test was designed to be used in an educational setting, where everyone is on the same side. Can you comment on its use in a forensic setting after a crime has been committed? For example, in such a setting, the defendant can intentionally give wrong answers, and delayed answers in a timed test. Isn't any test result after the commission of a crime invalid?

Posted by: Supremacy Claus | Apr 27, 2009 9:04:03 PM

"It's sickening even to think about."

Bies' crimes are what is sickening.

Posted by: federalist | Apr 27, 2009 9:08:35 PM

I once suggested to psychologist friends that psychologists should take over the criminal law. The lawyer is in utter failure. Psychologists are experts in behavioral modification. They know a lot of psychopathology.

My friends howled in laughter. Psychologists are even more, PC, left wing and pro-criminal than the lawyer.

I guess my psychologist friends were right.

Posted by: Supremacy Claus | Apr 27, 2009 9:47:03 PM

federalist. I agree with you. I am not saying he shouldn't be put to death. I have argued here before that I think Atkins itself is without any psychological justification. But it is the law. The difference between you and I sometimes is not that we don't want the same outcome but I honestly think the method of getting there matters. Bies may indeed need to be put to death. But abusing psychology, either for or against, is not the way to go about it.

SC: "The IQ test was designed to be used in an educational setting, where everyone is on the same side." This is exactly right. Perhaps you were not around during my long extended attacks on Atkins. I think using IQ tests in a criminal setting is an abuse of those psychological instruments and as a psychologist I am offended by it. The psychological concept of mental retardation itself is an educational developmental concept. It has no useful purpose in death penalty law. The fundamental problem isn't that people can lie; they can do that anytime they please. The fundamental problem is that you are taking tools and using them for purposes for which they were never designed. If you saw a man trying to pound a nail into a post with a spoon, you'd think he was an idiot. You can cut out a lambs heart and stick it into a scarecrow; the result is not a living human being. But when the law does the same thing with psychological concepts, it's heralded as a major development and a sign of humane innovation. In fact, from a psychologist point of view, the court looks like nothing more than a bunch of old farts drooling all over themselves. And I actually think that's sad, because I don't think that that's either true or the image the court wants to present.

If the court wants to make it legal to kill this guy, it has the power to do that; if the court wants to spare this guys life it has the power to do that. What upsets me is when the court starts justifying its position using psychological concepts it clearly doesn't understand and has zero expertise in. It's foolish and it can only bring the court into disrepute.

Posted by: Daniel | Apr 27, 2009 10:08:16 PM

Oh, by the way, let me clarify one minor point. IQ tests were not originally designed for educational purposes. They were originally designed to justify the superiority of the white race over the "inferior" races; in fact, the original IQ tests were anthropological, not psychological, instruments. It was only in the 20th century when the original purpose fell into disrepute that they were picked by psychologists proper and were introduced into the educational realm.

If you really want to know more about the subject I highly recommend Stephen J. Gould's "The Mismeasure of Man." Like all things, it has its flaws but its tracing of the history of IQ tests is excellent for a layman.

Posted by: Daniel | Apr 27, 2009 10:21:31 PM

Daniel: You are saying that the use of psychological or educational tests in forensic setting is pretextual, a false use of the law. I like your analogies that illustrate the absurdity and wrongfulness of the use of the IQ or the phrase mental retardation.

The SC's misconduct has no recourse. They also eradicated millions of viable babies without due process, a mass crime against humanity ranking high with the crimes of 20th Century tyrants.

That is why, I propose Federal Marshals arrest them. Brief trials get carried out, where they are made to wear tall dunce caps, where the sole evidence are excerpts of their decisions. Then they immediately hang or get shot in the head in the court basement. Their bodies get removed from the courthouse loading dock. Put them in unmarked graves, so that lawyers may not come to them as cult shrines.

Posted by: Supremacy Claus | Apr 27, 2009 10:39:07 PM

Scientific validity is not a requirement of case law. So a decision held 100 years ago. But this is 100 years later. Scientific invalidity should void a decision, since it violates the Establishment Clause. The misapplication of a test (the most scientifically validated psychological test in history), should void all relevant past and future decisions.

The Justices should stop being weasels, hiding behind a test. Just say it openly. We are lawyers. We love the murdering rapist. He is like us, a criminal.

Posted by: Supremacy Claus | Apr 28, 2009 2:52:48 AM

Doug, I am set to have an Atkins hearing next week in a capital case so I have been working with mental retardation issues a lot over the last couple months.

It seems to me that Atkins is a "functional Roper claim". By that I mean that the Court has decided that the Eighth Amendment prohibits the execution of children. The general set of "children" breaks down into two subsets, chronological children, Roper, and intellectual children, Atkins.

If Bies has already met the definition of being childlike in the eyes of the law, then I don't see why the state gets another chance to litigate that issue. The test is subaverage intellectual functioning, with significant limitations in adaptive skills functioning, both manifest before the age of eighteen. If the proper test was met, with the proper standard of proof on the proper party, then I think the state is estopped.

Since a determination of mental retardation is not a criminal prosecution, but is rather a gatekeeping function in the capital context, I don't see what the double jeopardy clause has to do with this.

You know me well enough to know I see Apprendi issues behind every bush. That is because there are Apprendi issues behind every bush. If we are now in an era where "our inquiry is one not of form but effect" then it makes sense that the Court has set up the notion of functional children as well as chronological children. Suppose a Chinese gymnast committed murder and there is a dispute as to her actual age and it was determined to be 17 by the appropriate level of proof. Why should the issue be relitigated?

bruce cunningham

bruce cunningham

Posted by: bruce cunningham | Apr 28, 2009 5:55:23 AM

Wow!, I just skimmed the oral argument and there is a lot to ponder in there. But I think there could be a potential bombshell lurking in Justice Kennedy's last question about whether the state should satisfy itself that Bies was not mentally retarded. That seems to suggest that the burden of proof is on the stnte to show a def is not mentally retarded, rather , as all states I'm familiar with provide, that the burden is on the def to show that he is mentally retarded.

This is exactly an issue I am arguing friday. My contention is that once the def has met the burden of production on the issue of mental retardation that the burden of persuasion should shift to the state.

I'll have to read this fascinating opinion more closely and will comment more.

Posted by: bruce cunningham | Apr 28, 2009 6:24:05 AM

Bruce: All criminals are immature from a specific, verifiable, handicapping developmental delay. They want their $5 for crack. If they need to slit your throat to get it, no biggie. That is two year old logic and lack of empathy. The satisfaction that years of education brought you? They achieve that feeling in a minute, and for $5. Their instant gratification supersedes all human consideration.

Think of sociopathy as a mental handicap. Many criminals "grow out" of this immaturity, just 40 years late. It is a developmental delay. It is a rare mental condition with a physical sign, an abnormally attenuated response in heart rate and blood pressure to having their hand placed in ice water. This shows a biological, involuntary basis to their handicap. Maybe they should all get disability payments.

By your criminal lover logic, moral mental age is an excuse.

I pray that by your physical proximity to dangerous criminals, you get effed up by one of them. That would be justice. It would help you with your immature, sicko lack of empathy with crime victims, the 23 million your boys devastate each year with the nearly absolute immunity granted by the criminal lover criminal cult enterprise controlling the three branches of government.

Posted by: Supremacy Claus | Apr 28, 2009 6:58:53 AM

Doug, I consider your blog as a serious project which is informative and helpful to practitioners. Ad hominem attacks like Supremacy Claus is fond of launching serve no useful purpose.

I wonder if you would consider a policy to require that all commenters use their real names and that comments from a person who persists in making abusive comments after being warned are blocked?


Bruce Cunningham

Posted by: bruce cunningham | Apr 28, 2009 9:03:50 AM


Our host has long had a laissez-faire policy on comments, and the inevitable result of such a policy is that people who simply like to sling insults and have little or nothing of value to add come to roost on the blog.

The person who calls himself "Supremacy Claus" is a fairly recent addition to this blog's roster of trolls, but he is certainly not the only one. (His comment of 4/27 9:47pm is actually correct. Even a stopped clock ....)

Policing comments takes time, and I suspect our host doesn't want to spend time doing that rather than something else he considers higher priority. It's his blog and his call.

I agree with your "real name" suggestion. It was tried briefly at SCOTUSblog, and it did improve the quality of comments significantly. The number of people willing to be complete jerks under their real names is significantly lower than the number who will do so anonymously. Lower, but not zero. SCOTUSblog still had jerks even under their real names, and they decided to cut off comments altogether rather than police them.


Posted by: Kent Scheidegger | Apr 28, 2009 10:46:20 AM

Bruce. "The test is subaverage intellectual functioning, with significant limitations in adaptive skills functioning, both manifest before the age of eighteen."

That is the test per the DSM. But my understanding (and it may be wrong) is that this is not the test in the law. The test is whether of not he was mentally retarded at the time of the crime. There are many people with suboptimal mental functioning who are never tested before age 18. You would think that would be impossible under ADA and IDEA but it happens all the time. I've dealt with it professional many a time.

While I have not gone back and looked at Dr. Winter's report I suspect that was the case there. But I'd actually disagree with your position that if the diagnosis was doing before age 18, challenges to it should be estopped. Especially when it comes to "mild" or "borderline" cases where adaptive functioning is a essential part of the criteria, the diagnosis for the educational setting might be too attenuated in time from the crime itself to be psychologically meaningful.

Another way to state my one aspect of my position is that psychological evaluations are only relevant when they are done close in time and space to whatever event they are supposed to evaluate. Psychological evaluations which are separated by long stretches of time (either before or after) become too attenuated to have any psychological meaning.

Posted by: Daniel | Apr 28, 2009 11:28:58 AM


Atkins did not define retardation. States may, but are not required to, adopt the DSM definition.

Note that "manifest" is not the same thing as "tested" or "diagnosed." A person whose lack of mental capacity is the result of some injury or disease occurring in adulthood is not retarded. However, a person is not excluded from the definition simply because he was not diagnosed in childhood by a professional. In those cases, though, the lay people in his life will know he was mentally impaired.

Bruce's equation of persons with retardation and children harkens back to the original notion of "mental age" as the numerator of "intelligence quotient" that psychologists abandoned long ago.

Posted by: Kent Scheidegger | Apr 28, 2009 1:53:02 PM


That's lawyer talk not psychologist talk. By manifest we do in fact mean tested. Lay people (and for this purposes lawyers are lay people) are not qualified to determine whether someone is mentally retarded psychologically. You could have his parents, his brother, and his teenage lover come forward and all say "of course he was retarded;" what do they know, they are not trained and qualified psychologists. Their testimony has little validity.

You are quite correct that the lower courts can come up with whatever definition of mentally retarded they want. Teddy Roosevelt had a term for this, he called it "weasel words". You take a word "mental retardation" that has a very specific meaning and then twist and turn it to whatever purposes you lawyers choose. That's insulting. When the average person hears the phrase "mental retardation" they don't have the legal gobbledygook in mind. They have a mental/psychological image in mind.

SC. "You are saying that the use of psychological or educational tests in forensic setting is pretextual, a false use of the law."

Well, according to Justice Holmes it's all pretextual. With that understanding, I don't have a problem with the court being pretextual. I just have a problem with the court adopting psychology as the pretext, the fig leaf to hide its unmentionables. Go find some other field of inquiry to serve as your underwear.

Posted by: Daniel | Apr 28, 2009 3:21:33 PM

Insulting? Take some deep breaths, Daniel. I did not insult anybody. I am just discussing what "retardation" means in this context. I don't claim to be an expert but am simply relating what I have been told by experts. If your understanding differs, fine, but don't get all hot and bothered about it.

Posted by: Kent Scheidegger | Apr 28, 2009 3:29:12 PM

Daniel, the lay people could testify as to what they observed. From those observations, the courts can conclude (with the aid of expert testimony) whether the legal standard for "mental retardation" has been met, a standard which may or may not dovetail with generally held psychological standards.

In any event, I find your vehemence here bizarre. Who is to say that psychological knowledge is the exclusive province of psychologists? Certainly, there is nothing wrong with the polity deciding that a group of people that it chooses to call "mentally retarded" are inherently less culpable for their crimes and borrowing from general psychological concepts to describe such persons. That's what's happening here.

Posted by: federalist | Apr 28, 2009 3:42:41 PM

Kent. I'm sorry you took that the wrong way. I didn't mean that you personally were insulting. Sorry if there was any confusion. I merely meant that I find that idea insulting. I am not Supremacy Claus and I am not engaging in any personal attacks on anyone. Just discussing ideas.

Sometimes I do get a little passionate because psychology is my passion. But no personal offense was taken or meant and I apologize if my words conveyed another impression. That was not my intention.

Posted by: Daniel | Apr 28, 2009 8:07:43 PM

federalists. "Who is to say that psychological knowledge is the exclusive province of psychologists?"

And who is to say that the law is the exclusive providence of lawyers? It depends upon what you mean by that term. Certainly, from a human perspective psychology is not the domain of any one group of people. But from a professional perspective it just is; that's what a profession means. A person can be held legally liable if they practice law without being admitted to the bar. And people can be held legally liable if they practice psychology without being state sanctioned. By creating state boards to license psychologists, the people have already spoken and said these are the only professional that we allow to engage in that practice in the state. The same way they do with doctors and the same way they do with lawyers. The consequence is that yes indeed there is something wrong with the polity borrowing from general psychological concepts to describe such persons. They have already delegated that power to a group of specialists.

It really is simple. If lawyers don't want non-lawyers practicing law, why do those same lawyers find it so difficult to understand when psychologists object to non-psychologist practicing psychology?

Posted by: Daniel | Apr 28, 2009 8:17:39 PM

Bruce: Which remark was not serious and upset you? Which remark was not made out of the love I have for the lawyer?

Posted by: Supremacy Claus | Apr 28, 2009 9:06:57 PM

Bruce: The remarks were for your welfare. As you know, thanks to your work, your client could do anything to you, with absolute immunity. All his crimes against you after his first murder would have been immunized by your work. No further consequence could visit your client.

Posted by: Supremacy Claus | Apr 28, 2009 10:46:29 PM

Daniel, my statement of the test for mental retardation tracks the language of the NC statute, which predates Atkins.

bruce cunningham

Posted by: bruce cunningham | Apr 29, 2009 12:31:37 AM

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