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


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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.

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Anonymous 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

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.

Anonymous 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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