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April 27, 2009

The little SCOTUS capital case that could...?

As detailed in this AP piece, this local story and this SCOTUSblog preview, this morning the US Supreme Court will hear oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  There are so many notable aspects of this little case as it comes up from argument, I am not sure where to start my commentary.

Perhaps it is the broader SCOTUS death penalty context of Bobby v. Bies that first draws my attention.  After a series of terms with numerous consequential and controversial capital cases (e.g., Baze and Kennedy and Medellin last Term), this SCOTUS Term has only two argued cases involving capital defendants.  And, notably, neither of these capital cases emerged from the deep south or west as is typical.  Bies comes out of Ohio, and involves an intricate set of procedural issues formally concerning the Double Jeopardy Clause. 

Indeed, because the Double Jeopardy issue is so narrow in Bies, it appears that a few Justices decided simply that an error-correction cert grant was needed because the Sixth Circuit arguably over-extended precedents to take the death penalty off the table the defendant.  It is telling and somewhat remarkable that, especially in a Term with so few capital cases, not a single amicus brief was filed in Bies for either side.  (I'd love to hear from serious SCOTUS followers about the last capital case without any merits amici.)

But while Bies looks like a tiny case, there are some really big issues lurking.  Bies is the first case to provide the Justices an opportunity to consider again its consequential 2002 Atkins ruling that the Eighth Amendment prohibits the execution of mentally retarded defendants.  And because Ohio puts the burden on a defendant to prove up his mental retardation, there also also some Apprendi and/or due process issues to be found deep inside this case.  And, of course, like all state capital cases in the federal courts, there are the usual confusing and confounding AEDPA issues.

Ultimately, I think it is likely that Ohio gets a narrow victory in Bies (and I also think it is likely that Bies will live a long time on death row even if Ohio prevails in this case).  But, as cases like Baze and Marsh reminds us, the death penalty context often leads some Justices to go beyond the precise issues they must confront in a particular case.  If that happens in Bies, this little capital case from Ohio could possibly become a much bigger deal than it now seems.

April 27, 2009 at 09:44 AM | Permalink


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» Bies Argument from Crime and Consequences Blog
The transcript of oral argument in Bobby v. Bies is now available here. Lauren previewed the argument Friday, and I wrote this post back in January when the Supreme Court took up the case.Things are looking bad for the defendant... [Read More]

Tracked on Apr 27, 2009 5:32:33 PM


"I'd love to hear from serious SCOTUS followers about the last capital case without any merits amici."

Interesting question. I can't recall the last one, assuming this refers to cases where a writ of certiorari is granted and the case set for oral argument. (There are many if one counts summary dispositions.) I went back over the case lists for the last couple of terms, and nothing jumped out.

Does "narrow victory" mean you expect Ohio to win on narrow grounds or by a a narrow vote? I agree their victory will probably be narrow in the former sense. This is a quirky case, but the Sixth is so clearly wrong that there should be few, if any, votes to affirm. That is probably why there are no amicus briefs. They were probably seen as unnecessary on the prosecution side (certainly here at CJLF) and futile on the defense side.

C&C has this discussion of the case.

Posted by: Kent Scheidegger | Apr 27, 2009 11:04:47 AM

You are spot-on with all your additional comments, Kent, and I would be especially grateful if you could/would try to track down the last case set for argument involving a capital defendant without any merits amicus briefs. It would be interesting not only to see how long ago that was --- i.e., how many intervening cases with capital defendants have had amici briefs --- but also how that case came out.

Posted by: Doug B. | Apr 27, 2009 11:12:22 AM

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