Monday, April 27, 2009

Is Turnabout Fair Play?

On Monday the Supreme Court will hear oral argument in Bobby v. Bies. My colleague John Blume is arguing on behalf of the respondent, who is under a death sentence from the Ohio courts. In addition, a number of my federal courts students have worked on the case under the auspices of the Cornell Law School Death Penalty Project. For those reasons, I have some reason to be less than fully objective and, accordingly, I won't here either make a pitch for an outcome or hazard a prediction.

I would note a peculiarity of the case that will make it an interesting test of some of the Justices' various commitments. Given the procedural complexity of the case, however, doing so will require a bit of background.

Bies was convicted of murder and sentenced to death for the murder of a boy. (As in most such cases, the crime was gruesome.) At his sentencing hearing, Bies's lawyer argued for life imprisonment rather than death partly on the ground that Bies's mental retardation mitigated his culpability. An expert witness testified that Bies was indeed retarded and the Ohio courts bascially accepted that testimony. Nonetheless, they upheld his death sentence because they found that the mitigating force of the mental retardation was outweighed by the various aggravating factors. At the time, the Supreme Court had not yet decided the Atkins case, which held that it is unconstitutional to execute a mentally retarded defendant.

The state concedes that Atkins applies to the Bies case, under a narrow exception to the general rule that federal habeas corpus courts cannot apply "new rules" of constitutional law to free prisoners whose trials and sentencing hearings complied with the rules in existence at the time they occurred. And thus, the federal district court and the 6th Circuit found that Bies could not be excecuted: The earlier proceedings established his mental retardation, and the Double Jeopardy prohibition forbids re-litigation of that issue, while Atkins now renders Bies ineligible for the death penalty. QED.

Not so fast, says the state. The mental retardation finding in the earlier period was made under a supposedly different (pre-Atkins) legal standard, and thus does not establish mental retardation for Atkins purposes. Further, the state argues, as a general matter parties are not bound by adverse findings on single issues (such as mental retardation) where they prevailed on the ultimate issue (such as a death sentence). Thus, the state contends, it should have the chance to prove that Bies is not retarded.

That brings us to the peculiarity of this case. In most federal habeas litigation, and especially in cases involving the death penalty, the state offers reasons why procedural technicalities bar the federal habeas court from reaching the merits. Thus, especially since the passage of the (creepily named) Anti-Terrorism and Effective Death Penalty Act (under Pres. Clinton), there are about a dozen ways a federal habeas petitioner can lose, even if he has a good claim on the merits.

Yet in Bies, it's the state that is arguing that a court (here the Ohio trial court) should be allowed to re-hear the merits (of the mental retardation issue), while it is the prisoner whose lawyers are saying that the state had its chance to prove its case (i.e., lack of mental retardation) and thus should have to accept the consequences.

In the more typical habeas case, the Justices who are unsympathetic to federal habeas peitioners often invoke the importance of "finality" in criminal ajdudication. It will be interesting to see whether that interest moves them at all when invoked by a habeas petitioner himself.

Posted by Mike Dorf

12 comments:

runescape money said...
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Sobek said...

I usually just skim through AEDPA cases. Are the procedural bars that usually work against a prisoner of the same type at issue in Bies?

That's a vaguely-worded question, I'll admit. As an example, if the AEDPA imposes specific deadlines to file petitions, then a prisoner who misses the deadline has a procedural bar that avoids the merits for the sake of finality. That kind of bar is of a very different type than where the law is changed after the fact, and there has been affirmative reliance on the old law by one of the parties.

My instinct in this case is to affirm the lower court and give the guy life in prison.

George Lowrey said...
This comment has been removed by the author.
George Lowrey said...

You favor finality in this death penalty post. Fine. It's arguable either way. But you don't recognize a similar problem with the Democrats who are now advocating prosecution of Bush, Cheney and attorneys at the Justice Department who authorized and approved the use of enhanced interrogation techniques in the aftermath of 9/11. No court has decided that these techniques constituted torture or violated any statute at the time the techniques were used. It is undisputed that these techniques saved thousands of innocent lives. None of the Democrats who are yelling about "torture" now did so in the aftermath of 9/11. Senator Kennedy introduced legislation in 2006 to define "water boarding" as a form of torture, but his effort failed. I anxiously await your criticism of the Democrats' demagogic application of an unrealistic ex post facto standard to the Bush presidency today that will make the USA far more vulnerable to terrorism in the years to come.

Michael C. Dorf said...

In reply to Sobek's question: There is a pretty close analogue in the flipside case. Suppose a prisoner in his state appeal neglects to make an argument that he's entitled to relief under Rule X, which the Supreme Court hasn't yet announced. Now he's procedurally barred (absent "cause and prejudice" or "actual innocence," both difficult to show) from saying on habeas that he should have gotten the benefit of X, so long as he could have anticipated that the Supreme Court might decide X. That's pretty close to what the 6th Circuit said in Bies: That the state should have been able to anticipate Atkins. I'm not saying it's impossible to draw a principled distinction between the two contexts, just that the flip is interesting.

In response to George Lowrey, in fact I have argued (quite recently) that there are reasons not to prosecute the authors of the Bush interrogation practices. See http://writ.news.findlaw.com/dorf/20090422.html

Michael C. Dorf said...

And to clarify another point in response to GL: My post does not favor finality. It doesn't take a position. It simply notes the flip of the two sides from their usual positions.

Sobek said...

Prof. Dorf, it seems that the Defendant is getting the retroactive benefit of a newly-announced rule, and the state is (under Defendant's argument) foreclosed from doing so.

That is, as far as I can tell Defendant did not make an Atkins argument, and the prosecution did not make a "he's not really retarded" argument, and only one side is prejudiced by the new rule.

George Lowrey said...

Prof. Dorf: Your are clever. But the title of your post gives you away. You suggest that Obama pardon members of the Bush administration, which indicates you believe torture or "abuse" (your chosen word) was committed. However, water boarding, at least as applied to KSM, was not torture because (i) it was conducted for a valid and rational purpose and not for revenge or retribution as in the case of the Japanese abuse of American POWs, and, (ii) so far as we know, as applied to KSM, it did not do lasting psychological or physical damage. These characteristics remove the enhanced interrogation techniques out of the definition of torture. The better position is to say that no torture occurred at all because of the careful way interrogation was carried out and the reasons it was done. Your position may spare Bush administration officials and lawyers from financially ruinous litigation. Yet in the long run it creates a dangerous chilling effect on future administration officials who may have to use water boarding under controlled circumstances to root out terrorist plots as the Bush administration did so successfully with KSM- a fact that cannot be denied.

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較為潮溼的地方所以生長了許多白蟻他在網路上做了許多的搜尋的動作要的工作較佳的不一定是真的有那麼人找他們除蟲這個問題如果沒有解決即使找來搬家公司也是英雄無用武之地世界怪譚台北是一個人口聚集的地方需要台北搬家的人也特別多所謂人人都愛住在有山有水的地方自然蟲也會特別多所以除蟲就變成一個重要的工作不論年際多大都要參與我到網上的除蟲教學中心他們除了指導你們如何除蟲外更為中和地區的人服務教他們如何中和搬家這是他們在做遷習時必須學習的課題但是看到蟑螂還是會讓人想把它捉起來

奇文怪章:幾年前流行性感冒侵襲花壇鄉於是他們那邊的搬家公司就生意特別好,因為接到許多生意是要幫他載人去這樣當有人需要找除蟲時我們就可以很順利的找到我們要中和搬家了因為東西實在太多太重跟本不可能搬的動像冰箱鋼琴又找來新店搬家來幫忙只能說他們真是大力士一下子就搬完了

股市奇聞最近股票都一直漲牛市衍然形成許多賺到錢的人想要搬家到台北於是找上了台北搬家公司來幫忙搬但是東西太多他們竟然的搬但是這樣太慢等他們搬好太陽都下山了板橋搬家的老闆陳先生表示由於許多員工都是草梅族所以都沒力氣永和搬家有十多年經驗的謝經理也說他們也遇到相同的情況還有人見到老鼠當場嚇暈的真是無言以對

雅文共賞阿明是一個非常愛寫作的人他在中和搬家上班他很有心在工作的空檔都會拿出他們筆在寫作有一次因為太專心寫作忘了工作於是被老闆開除他又到另一家桃園搬家工作但是他都老毛病又犯了寫作寫到又忘了工作又被開除他就開回頭車回公司去辦理離職手續並且他把捉的十多隻小老鼠帶回家去那是他的寶貝他細心的幫他們消毒完讓他們可以快樂的生活

昨天擊出再見一擊的功臣是十一局轟板橋搬家可以選擇以提供無償桃園搬家勞動來折抵刑期回頭車預定將在九月一日實施台北搬家更生團契總幹事黃明鎮牧師認同此項政策新店搬家人去服務社會,比在獄中服刑有意義。」永和搬家本被判處六個月以下刑期的受刑回頭車以選擇以易科罰金來代替坐牢傷癒復出後首度回到洋基新球場進行系列戰,A-Rod在紐約球迷面前用棒子宣告他的歸隊。今天洋基與雙城進行第二場系列賽搬家公司但是在經濟不景氣

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