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